Church in the World

South Dakota challenges US abortion law

In a bid to force a Supreme Court review of abortion law in the United States, South Dakota?s state legislature has launched what its governor called ?a direct frontal assault on Roe vs Wade?.

The carefully titled Women?s Health and Human Life Protection Act was passed by comfortable margins, criminalising all abortions except those to save the mother?s life. Under the proposed law mothers would be specifically exempted from prosecution, but any doctor guilty of the felony of abortion could face five years in prison. The bill has no exception for rape or incest. Mike Rounds, the Republican governor, said he would seriously consider signing the bill, the most stringent passed by any state since Roe (1973), in which the Supreme Court read a right to abortion on demand into the Federal Constitution.

South Dakota is sparsely populated and conservative there is only one abortion clinic in the state, and there are about 800 abortions each year. Moreover, pro-abortion groups are certain to challenge the law as unconstitutional, and the federal courts are almost certain to issue injunctions against enforcement. Analysts suggest the object of the bill, like the ones being considered in Georgia, Ohio, South Carolina, Tennessee and Indiana, is simply to force a Supreme Court review of Roe itself.

The fight turns on the altered arithmetic of the nine-seat Supreme Court. John Roberts, the new Chief Justice, is a Catholic and assumed to be hostile to abortion; but he took the seat of Chief Justice William Rehnquist, who was one of two dissenters in the original Roe verdict.

What, however, has shifted the court is the replacement of Sandra Day O?Connor, who always voted to keep abortion legal, by Samuel Alito, another Catholic conservative who commentators suggest would vote to overturn the law.

That would give Roe a slim 5-4 majority in favour of keeping the law as it stands. But of that majority, one justice, John Paul Stevens, is almost 86, and may well have been replaced by another conservative by the time the South Dakota law reaches the court. In that case, abortion would cease to be a national constitutional right, and would become a state matter the traditionally Republican ?red states? would be free to make it illegal once more, and also to press for an amendment to the constitution outlawing it everywhere.

Whatever the outcome of South Dakota?s manoeuvre, both sides of the abortion debate perceive that Roe?s principle of abortion on demand is under incremental attack. Last week the Supreme Court agreed to review partial-birth abortion, the procedure called ?intact dilation and extraction? by its proponents, in which the child is deliberately delivered feet first so that the skull can be pierced with scissors and the brain removed with a suction catheter while the head is still within the mother, thus avoiding infanticide laws.

A 2003 federal law forbade the procedure without making an exception when a mother?s health is at risk, and was duly struck down but the nine justices have agreed to consider the administration?s appeal against that ruling in the autumn.

A few months ago a poll by the independent Pew Research Centre found that only a third of the American population wants Roe overturned; on the other hand last month CBS polled only 27 per cent who said abortion should be ?permitted in all cases?, with three-quarters of respondents advocating greater or total restriction.

The Republican Party generally finds the anti-abortion plank galvanises the vote in the ?red states? without losing too many votes in the traditionally Democrat ?blue states?; many Democrats have been inclined to dilute their party?s commitment to legal abortion since the 2004 election, in which abortion is thought to have decided too many blue-collar Christian voters in swing states. The politics are thus propitious for rolling back what the United States Conference of Catholic Bishops has called the advancement of the culture of death.
Richard Major, New York