by Steven Ertelt
February 23, 2006
Pierre, SD (LifeNews.com) — Pro-life groups are taking differing views on the timing of a South Dakota ban on almost all abortions. The measure is meant to be a first crack at overturning the Roe v. Wade and Doe v. Bolton decisions that allowed virtually unlimited abortions throughout pregnancy.
Supporters of the measure are relying on the confirmation of two new Supreme Court judges — Chief Justice John Roberts and Justice Samuel Alito — who are expected to uphold the ban and overturn the high court’s 1973 landmark decision.
However, other pro-life groups point out that the court still has, at most, just four votes to overturn Roe and there is no guarantee a fifth vote will materialize by the time the ban reaches the Supreme Court.
Roberts replaced Chief Justice William Rehnquist, one of two dissenters in Roe, and Alito replaced pro-abortion Justice Sandra Day O’Connor. Yet one more of the five pro-Roe judges must be replaced to give the pro-life movement a shot at overturning the case.
Some pro-life groups are ready to take that gamble.
"With several states waiting in the wings to ban abortion, momentum is clearly building nationwide to overturn Roe," says Rev. Patrick J. Mahoney of the Christian Defense Coalition.
"The optimism in the pro-life community also surged yesterday when the Supreme Court agreed to hear a case on banning partial-birth abortion. All of these things indicate that Roe is slowly, but surely, being chipped away at," Mahoney said.
But has the momentum shifted enough to allow a case to overturn the decision?
Clarke Forsythe, a leading attorney at Americans United for Life, told StateLine last month he doesn’t think so.
"I think that it is better policy in January 2006 to be passing legislation that can be enforced and that can protect women and minors from the physical and psychological risks of abortion."
He said states should look to passing laws like parental notification, informed consent requirements or other measures designed to reduce abortions. Such laws have been credited with significantly lowering abortions and some states are seeing their lowest abortion totals since Roe.
Should states approve wholesale abortion bans, like South Dakota, he worries they will be overturned by the courts and further entrench Roe v. Wade as a legal precedent.
"It’s as predictable as the sun rising tomorrow at 7:04" that the proposed bans, if enacted, would be struck down, he explained.
In the 1990s, Utah and Louisiana approved abortion bans, which were overturned by lower courts. The cases were appealed to the Supreme Court, but were not heard.
Other pro-life advocates are concerned that President Bush may not have another opportunity between now and 2008 to appoint a fifth vote to overturn Roe. Should he have that chance, there’s no guarantee the nominee will be confirmed, given his current tenuous political standing.
The results of the 2008 presidential elections will also make a major impact on the makeup of the court.
Should a pro-life candidate win, the likelihood that Roe will be overturned increases dramatically. But if a pro-abortion candidate wins, court observers say its possible as many as two or three of the high court’s pro-abortion members could retire and pave the way for younger abortion advocates who could serve on the court for 20 or 30 years.
Yet, many South Dakota pro-life advocate say the timing is right.
"It is a calculated risk to be sure, but I believe it is a fight worth fighting," said Republican Sen. Brock Greenfield, also the director of South Dakota Right to Life.
"Now is the appropriate time for this legislation," says Leslee Unruh, founder of the Alpha Center, a Sioux Falls pregnancy center that serves women contemplating abortion.
Lawmakers in at least five states, including Georgia, Indiana, Ohio, South Dakota and Tennessee, have proposed legislation to prohibit all or most abortions.