South Dakota has become the scene of a topsy-turvy drama. Those who once turned to the courts to win abortion rights are now asking the people to decide in a referendum, while those opposed to the courts' role in abortion are seeking a legal fight.
Whether one approves of legalized abortion or not, this turn of events now playing out in one state should be welcomed. American politics, especially in presidential primaries and the selection of high court justices, has become dangerously polarized since the Supreme Court's 1973 Roe v. Wade decision. It's time to look at how abortion issues are decided - whether by judges, legislatures, or referenda - not just what is decided. A change is needed to help broaden the consensus on abortion and reduce the acute partisanship Roe helped create.
How did South Dakota end up shifting this debate to one of process?
A few antiabortion activists have become emboldened by the decades-long effort to have Republican presidents appoint justices to the Supreme Court who appear skeptical of Roe. These activists don't see abortion choice as a right and regard the high court as just another political institution vulnerable to change through politics. With the recent addition of two Bush nominees to the bench, they see a chance of overturning Roe.
South Dakota legislators, in approving a law in March banning abortion, were willing to start a legal challenge to Roe (as well as to a 1992 revision in a ruling called Planned Parenthood v. Casey). It may not work out that way.
Pro-choice advocates, confident that Roe is widely accepted as the law of the land, have decided (so far) not to take the state law to court. Instead, on May 30, they submitted more than 37,000 signatures - double what's required in South Dakota - for a referendum on the law in November.
One poll indicates South Dakotans will reject the ban, despite wide support for it in the legislature. At the least, Americans will be able to witness a grass-roots debate and a popular vote on abortion, and begin to more readily accept the outcome than in the case when a few judges debate the issue in their chambers and make narrowly split rulings.
A highly charged issue such as abortion can become less charged if the losing side is fully engaged or is witness to a democratic process on the issue, one in which the majority will is clear and the reasons pro and con are fairly aired. A better respect is developed for the result. A certain tolerance sets in.
Despite 33 years since Roe, states still differ widely in how to regulate abortion, such as in requiring waiting periods or parental consent. Allowing states to work through this diversity of rules, even if it's through a public referendum, will over time better establish a firmer national consensus and also help return to the states their right to legislate on health and moral issues. Abortion opponents may start to talk to each other and find common ground with abortion rights supporters on, for instance, preventing unwanted pregnancies or making adoption easier.
Whether one sees abortion as murder or not, government oversight of it is everyone's concern. South Dakota's referendum may make that shared concern more possible.