Abortion foes split on tactics
After years of chipping away at Roe, they weigh S. Dakota's frontal assault.
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Some antiabortion advocates have stepped forward publicly with objections to South Dakota's approach. "Precedent does mean something," says Dan McConchie, vice president of Americans United for Life, a legal-advocacy group based in Chicago. "The court as an institution tends to be very protective of its image, and doesn't tend to overturn its own decisions on a whim or something that could be perceived as being of a political nature."Skip to next paragraph
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Mr. McConchie noted that for the Supreme Court to reconsider the central holding of Roe - that a woman's right to end a pregnancy exists in the Constitution's implied right to privacy - it does not need to take a case that seeks blatantly to overturn it. The most significant post-Roe abortion precedent, Casey v. Planned Parenthood of Southeastern Pennsylvania, centered on restrictions to the abortion right, but could have served as a vehicle to reverse Roe if the justices had so chosen.
Still, for many antiabortion activists, efforts to attack Roe head-on can't come too soon. "The question of abortion is the question of human life, and how can we reserve action when it comes to defending human life?" asks Paul Schenck, director of the National Pro-Life Action Center in Washington.
He rejects the argument that the South Dakota legislation could backfire. If the justices don't believe the time is ripe to reconsider Roe, they don't have to accept the case. Lower-court rulings would presumably strike down the ban, and so the South Dakota effort could wind up being symbolic. But as a symbol, Mr. Schenck says, it could be powerful - emboldening other state legislatures. Already, at least six are considering their own abortion bans.
Ultimately, the "chipping away" approach that has been the main strategy of antiabortion forces since the 1980s is likely to remain the movement's major focus.
The Supreme Court announced last week that it will hear a case later this year seeking to uphold a federal ban on what critics call "partial-birth abortion." That ban has a good chance of being upheld, since Justice Sandra Day O'Connor - the swing vote upholding a similar ban in 2000 - has now retired. Her replacement, Justice Alito, is expected to view abortion restrictions more favorably. If upheld, the ban would represent the first outlawing of any abortion procedure since Roe was decided, and could have a chilling effect on doctors' willingness to perform abortions, say supporters of abortion rights.
"What happens in the partial-birth case is vastly more important than anything that could happen in South Dakota," says Mr. Garrow.
Indeed, abortion-rights supporters acknowledge that South Dakota could redound to their benefit, by grabbing the public's attention and reminding the majority of Americans who want to keep Roe in place that abortion rights are under attack.
"South Dakota has been just a tremendous wake-up call across the country," says Cecile Richards, president of the Planned Parenthood Federation of America. It is a reminder, she adds, of "how important it is who serves in state legislatures and who serves in the governor's office."