The South Dakota thunderstorm

The Supreme Court does not need to directly overturn Roe in order to essentially overturn Roe.

by Abby Bar-Lev

The Daily has been covering the South Dakota abortion debacle from the opinions pages to the news pages. As a feminist columnist, I feel a need to join the conversation.

“For the first time in nearly 14 years, legal abortion in the United States is in serious jeopardy,” said William Saletan of the online magazine Slate. The day after the Supreme Court announced it would review the Partial-Birth Abortion Ban Act, South Dakota’s Legislature passed a bill banning virtually all abortions in the state. Just a few days after that, the Supreme Court ruled that violent protesters outside abortion clinics are A-OK and did not violate anti-racketeering laws.

It may only be March, but 2006 is shaping up to be an ugly, ugly year.

The Supreme Court in 2000 struck down a Nebraska partial-birth abortion ban in Stenberg v. Carhart, because it placed an undue burden on a woman’s right to have an abortion and lacked a health exception. This case may be the silver lining in the case of South Dakota. The South Dakota ban allows abortion only when the pregnancy causes “serious risk of substantial and irreversible impairment of a major bodily function” to the mother. It does not make any exception for rape and incest victims. Doctors who provide abortions for any women, including rape or incest victims and women whose health is threatened but do not fit the “serious risk” health exception, are liable to be jailed for five years.

I would hope there is no need to spell out my personal disgust for a law that so allows government to become the middleman between a woman and her doctor. The law essentially tells victims of rape and incest, “Well, that’s really too bad for you, but listen, you’re going to carry that pregnancy to term, and I don’t care how you got there.” Not only is the South Dakota abortion ban regressive and intolerant, but according to BBC News, the bill out of South Dakota “is considered one of the strictest passed in the U.S. in recent years.”

If the Stenberg case is the silver lining in all of this, the huge gray cloud hovering above us is the new makeup of the Supreme Court. When Stenberg was decided, the vote was on a 5-4 split with, of course, Justice Sandra Day O’Connor making the difference. The Stenberg precedent has not been in place for a long time – just six years – and has not been reaffirmed by other decisions the way Roe v. Wade has. Add to the mix the aging Justice John Paul Stevens (who will be 88 in 2008) and Justice Samuel Alito, who is filling O’Connor’s place on the court, and that 5-4 decision protecting women’s health is looking shakier. This earnest challenge to reproductive rights emerging from South Dakota is timed gruesomely well.

South Dakota has only one Planned Parenthood Health Center in the state. Its director, Kate Looby, said of the ban, “Clearly, this is a devastating day for the women of South Dakota,” continuing, “We fully expected this, yet it’s still distressing to know that this legislative body cares so little about women, about families, about women who are victims of rape or incest.” More distressing is that South Dakota is not standing alone in its anti-woman bravado. While all the attention is being focused on South Dakota, similar bills are advancing in Mississippi, Ohio, Indiana, Georgia, Tennessee, West Virginia and Kentucky. The Kansas City Star reported that a state legislator in Missouri “has introduced a proposed new law and an amendment to the state constitution – a move that would go on the November ballot. Both of his proposals would make anyone who performs abortion liable for a prison sentence of 15 years unless the procedure was needed to save the woman’s life.”

South Dakota’s ban is so striking because it is one of the most direct attacks and challenges to the basis of Roe v. Wade. Even so, whether the Supreme Court ever actually topples Roe v. Wade is not the issue here. The Supreme Court does not need to directly overturn Roe in order to essentially overturn Roe. Rather, laws like partial-birth abortion bans and New Hampshire’s parental notification law, which was upheld in a decision by the Roberts Court, challenge Roe from the periphery. What we are likely to see (and have been seeing) is a slew of laws that chip away at Roe, making it nearly impossible for women to attain abortions under any circumstance, all without necessarily overturning the 1973 decision. I always like to think positively, but I do not know whether one silver lining can blind a looming thunderstorm.

Abby Bar-Lev welcomes comments at [email protected]