Common Sense in South Dakota

The People Challenge the Politicians on Abortion

It appears that many South Dakota citizens disagree with the legislature's decision to impose criminal penalties for nearly all abortions in the state. Some are going to petition for a popular referendum to repeal the law. A most interesting approach. State Representative Elaine Roberts observed "The vast majority of South Dakotans are somewhere in the middle. They have mixed feelings about this issue and I personally don't believe that their views are represented in HB-1215."

The act of the South Dakota legislature is of course, null and void from its inception. Every legislator who voted for it knows that. A very routine judgement from a federal district court would suffice to confirm the obvious. The 7-2 decision by the Supreme Court of the United States in Roe v. Wade remains the supreme law of the land. That ruling is binding on every federal court of appeal, and every federal district court judge, no matter what their personal sentiments. It is also binding on the legislature and laws, and the courts, of the state of South Dakota. The new state law is, accordingly, utterly unenforceable.

But a referendum will accomplish something that no dry court ruling could do. Perhaps it is true that a majority of people in the state are neither "pro-abortion," nor supportive of the "pro-life" lobbyists – who want to restore draconian criminal penalties. In that case, the referendum will make this a battle of "the people vs. the lobbyists and politicians" rather than "activist judges vs. the popular will."

It is possible, even probable, that the legislators who passed this unenforceable law HOPE that it will make its way to the Supreme Court, where a new majority may overturn Roe. That is rather unlikely, but nothing will drown this remote possibility so well as a vote of the people to reject the new law. The legislature and governor of the State of South Dakota would then have nothing to appeal.

In the event of a legal challenge, judgment from a federal district court would be a foregone conclusion. A federal appeals court might well decline to even consider an appeal from the district court, since current constitutional law is so obvious and well defined. There is no controversy. There really is nothing to consider on appeal. That would serve as an extremely poor basis for the Supreme Court to take a direct appeal. Unless four or five justices are firmly committed to overturning the court's existing precedent, there would be no reason to grant a writ of certiorari.

Every measure of public opinion indicates that a majority of Americans take a sound, sensible, common-sense, conservative position on this whole endless controversy. The heavy hand of government, of criminal penalties and public prosecution, has no role in the intimate decisions of a pregnant woman during the first trimester. The state has only a very limited place in the second trimester. Abortion is not a desirable course of action, and few of us would recommend it unless there is a good reason. We differ on what might constitute a good reason. Many believe it to be a sin under any circumstances. But a firm majority of us would ultimately let each pregnant woman make her own decision.

Public opinion is not, of course, the measure of constitutional law. As Justice Antonin Scalia pointed out, in his eloquent concurring opinion in Apprendi v. New Jersey, the constitution means what it says, not what we think it ought to mean. Justice Scalia has also noted, correctly, that supreme court justices are appointed for life, precisely so they can follow the law, rather than bending to whatever happens to be the popular will at the moment. A constitutional limit on the powers of government does not appear when a popular majority approves, then disappear when a popular majority shifts the other way.

It may be that the constitution does not protect individual privacy from government intrusion. Most Americans have come to passionately expect that it does protect our personal lives from state interference, in many different ways. Justice Scalia has been firm in holding that the 4th amendment secures the home against government intrusion. Other justices, notably Oliver Wendell Holmes, Jr., and Louis Brandeis, have argued for an expansive right to be left alone. As long as such a right exists, legislators or popular majorities, in South Dakota or anywhere else, are powerless to intervene in the private decisions of individual citizens.

If the Supreme Court finds that there is no such constitutional protection after all, then states would be free to go anywhere they choose. The legislature of South Dakota would be free to adopt criminal penalties for abortion, and to have them enforced. The people of South Dakota would be free to overturn the legislature by referendum. There is a place for both constitutional protection and the popular will in our system of government. Right now it is an open question, who truly speaks for the people of South Dakota?

Unfortunately, a majority of the South Dakota legislature views abortion through the dark glass of a "war" that has to be "won." So, on a national level, do NARAL and Planned Parenthood. These two fanatical viewpoints, each more concerned with "winning the war" than with allowing women to make healthy choices, have fed on each other for at least 20 years. Both fail to recognize that our culture is moving toward greater reverence for life precisely because of Roe v. Wade.

It would be a very good thing if Americans who stand for the right to life of every unborn child would put all their money where their mouth is. Instead of endless and futile demand for criminal penalties, think what they could accomplish by reaching out to pregnant women who are not sure they can handle bearing and raising a child! Let every person who believes abortion is always wrong offer to take complete responsibility for any fetus brought to term by a mother who does not want, or feel able, to keep and raise the child.

Also, could the "pro choice" advocates please lower their profile a little? Roe v. Wade rested on the respecting the intimate private decisions of individual women and families, consulting their own choice of physician, not on a "right to abortion." Justice Harry Blackmun's private papers reveal that he specifically rejected the concept that there is a constitutional right to abortion. Highly publicized clinics dedicated to providing abortions offer an obvious lightning rod. Could we please let this whole issue fade back into a private decision, and respect whatever decision an individual woman may choose to make?