Making abortion illegal

by Sal on February 23, 2006

in Politics

A law has been passed making abortion illegal in South Dakota. The purpose of the law is to directly challenge the Supreme Court to re-rule on the constitutionality of abortion.

While I certainly agree wholeheartedly with the law in question, I think it is a mistake to attempt to pass these laws at this time. The court is still not made up of a majority of justices who interpret the constitution as originally intended. Only two judges are sure bets — Scalia and Thomas — and two others are promising hopefuls — Roberts and Alito. On the wing of the court that believes it is up to the justices to make policy are Stevens, Breyer, Ginsburg, and Souter. In the wishy-washy camp is Kennedy. I don’t think that even if Roberts and Alito pan out as solid originalists, the law will be overturned at this time. Kennedy’s history shows that while he may favor some limited restrictions on abortion, he definitely doesn’t favor an all-out ban. See Casey vs. Planned Parenthood.

This premature passing of the law may turn out to do more harm than good for the pro-life cause. By forcing the issue now, we may end up with one more hurdle of precedent to overcome when it comes up for a vote again.

{ 7 comments… read them below or add one }

Ryan February 23, 2006 at 4:22 pm

I agree with your trepidations, Sal. If the pro-life cause rushes it, then we may have yet another hurdle to jump in taking down Roe.

But I like the gumption shown by the representatives in South Dakota. It’s brave and sensible if they reflect the people of that state.

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NOONAN February 23, 2006 at 7:03 pm

Similar laws are being passed in 5 states right now according to lifenews.com

It may not work now, but won’t it at least save some time so that once Roe is overturned the law is on the books already. It doesn’t hurt anyway, even if it comes down 5-4 against. If they can review partial birth every other year, they could review Roe in a consecutive year if that’s when Stevens leaves the court.

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rightonoz February 27, 2006 at 2:10 am

You’ll have to educate me on this, being from ‘down under’.

I haven’t found what in the constitution supports any ban on abortion. I can guess that there is something in the principal of not userping a state’s right to make laws, but from what I can see on one side of the argument ROE was a valid decision, or from the other side a bit of a stretch.

Just so I’m up front, on this subject, I’m actually in favour of a woman’s choice. Guess you could say, taking minimal government interferance to an extreme position. Yes, you can be right wing and support Woman’s choice.

I don’t want to get into a fight about the rights and wrongs of abortion, you’re entitled to your opinion as am I and I respect yours and request the same.

I just struggle on the logic of saying the Supreme’s erred in the original decision. Now I may well have missed something, so feel free to point it out to me. Not picking a fight, just asking the question.

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Mike February 27, 2006 at 12:48 pm

Good question rightonoz. For the sake of disclosure, all three members of this site are pro-life.

You touched on the reason of why Roe is a poorly reasoned decision. Under our system, specifically the Tenth Amendment, powers not given to the federal gov. are reserved to the states.

Abortion is not mentioned under the constitution. For this reason, the legality of the procedure is a question for states to decide. At the time Roe was decided 48(?) states prohibited abortions in most circumstances. These state statutes did not violate any provision of our constitution.

The Roe court could not cite an actual provision which prevents states from banning abortion, but rather, the court constrcuted an argument whereby an implied right of privacy prevented states from banning the procedure. Our view is that since the Constitution does not prevent states from passing laws outlawing abortion, the states should have been entitled to pass these laws.

When Roe is overturned, the debate we’re sweeping under the rug can happen. At least the results will then be reached through the democratic process.

The error in the decision declaring a right to an abortion in the constitution is that the court essentially made it up.

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rightonoz February 27, 2006 at 6:30 pm

Thanks for that explanation.

I guess we in Australia suffer (?) a similar problem in that the states and territories of Australia (with the exception of the Capital Territory which like DC is a made up existence for the sake of inter state politics and squabling over where the capital should be)were separate colonies and retain significant autonomy, with the result that there are frequent scraps over who should have the final say on some matters. From time to time challenges head for the courts over where a state right ends and a Federal right takes over (an ever evolving standard). My personal preference remains with the English Common Law rather than a constitution which seems in every country to be constantly ‘interpreted’ by justices according to their political background. Great idea, but no one seems to have gotten it quite right. (no insult intended).

Also thanks for not beating me over the head with our difference on abortion.

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Sal February 27, 2006 at 8:02 pm

The very problem we face, and the problem Conservatives are constantly pointing out, is the politization of the judiciary. You are right regarding the Constitution being interpreted according to the whim of the judge in the court at the time. This, however, is a rather recent pheonomenom in this country (although it has always existed, much to the country’s detriment – see Dread Scott decision). What usually happened in the past was that other branches of government would react to keep the judiciary in check. In the last 50 years (perhaps 75 or so..) this trend has changed, and the Judiciary has grabbed more and more power. There is a movement in this country by judges known as Originalists to look back at the original meaning of the constitution when interpreting law, and limiting themselves to that meaning. These judges are often labelled as “Conservative” or “Right-leaning idealogues”, but there are often times when their decisions conflict with the Conservative political agenda. It is this faithful interpretation of the law and the Constitution which will again bring issues where they may belong.

In the abortion example, it wasn’t even a case of states vs. federal government. A woman sued a state, and the Court ruled that no one, no where, could make a law regarding abortion. This is a major point of contention for Conservatives such as myself. I am pro-life, and I have reasons for being pro-life. BUt I want to have the debate in the arena of ideas and convince people of my arguments through the art of persuasion. Then, through the democratic process, I hope that my position prevails. If it doesn’t, I will continue to push for that change, but at least I’ll have a chance by working to convince my fellow citizens. As it stands now, five men in black robes decreed in 1973 that I don’t even have a vote in the matter.

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rightonoz February 27, 2006 at 8:53 pm

Thanks for the added background.

I know we’ve had a growing number of decisions here where judges have decided that something in the UN charter means that our own laws have no effect or to read some intent into a law that reasonable people could not possily infer (9 times out of 10 their decision is so far wacky left as to be unbelieveable).

Guess a law degree and bench experience does not necessarily result in reasoned and impartial application of law (it’s in their oath)

Good luck with your push for change. I can understand and respect any belief that is championed through debate and democratic process. (I know I’m always right, but democracy means that even the people in the wrong get a chance to have their say – a little Oz humour)

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