Down and Dirty in the Abortion Debate

By John Nichols, The Nation. Posted February 23, 2006.

It is rare that a decision by the South Dakota State Senate merits national attention. But there is simply no question that this week's vote by that chamber to ban abortion ought to be on the radar of every American who thinks that the right to choose is an issue. Certainly, opponents of reproductive rights recognize the significance; after the South Dakota vote, the Rev. Patrick J. Mahoney, director of the militantly anti-choice Christian Defense Coalition, said he saw the foundations of the Supreme Court's 1973 Roe v. Wade decision crumbling and announced that, "With several states waiting in the wings to ban abortion, momentum is clearly building nationwide to overturn Roe."

Mahoney allies in South Dakota agree. "The momentum for a change in the national policy on abortion is going to come in the not-too-distant future," says Republican Representative Roger W. Hunt, who has spearheaded the drive to make South Dakota the first state to pass a broad ban on the prodecure since the Roe decision of 33 years ago.

There's a reason this fight is playing out in this state.

South Dakota is one of three states -- North Dakota and Mississippi are the others -- with only one abortion provider.

With an overwhelming 23-12 vote to make it a felony for doctors to perform abortions, the South Dakota Senate has joined the lower house of the legislature -- which backed the bill by a 47-to-22 margin -- to endorse a move that could force the shuttering of that state's last clinic.

The fight is not over. South Dakota Governor Mike Rounds, an anti-choice but somewhat sensible Republican, still must decide whether he wants to sign the bill. But the wide margins in favor of the ban in both houses of the legislature suggest that, even if Rounds determines that the measure goes to far, his veto could face an override threat.

If the South Dakota ban becomes law, it will face an aggressive challenge in the courts. But, as everyone is, by now, well aware, the courts have changed a great deal since the last time they weighed the basic question of whether women will have a right to make decisions with regard to the termination unwanted pregnancies.

Just how dramatically unwanted a pregnancy might be is of little concern to the South Dakota legislators who backed the ban. While a narrow exception was allowed for procedures that would save the life of a pregnant woman, the South Dakotans rejected amendments to the bill that would have provided exceptions in the case of rape or incest or serious threats to the health and well-being of the woman.

Representative Hunt was blunt about why he and other took a hard line: Providing protections in "special circumstances" -- such as cases where children are raped -- would have diluted the bill and muddied the push for a Supreme Court decision overturning Roe.

The court fights that may evolve over this particular measure are, in large measure, beyond the control of the great majority of Americans who support maintaining access to safe and legal birth control procedures. The failure of U.S. Senate Democrats and the handful of pro-choice Republicans in that chamber to filibuster the nomination of Justice Samuel Alito has created an opening that the anti-choice movement has for years been preparing -- on a meticulous state-by-state basis -- to exploit. The Supreme Court may still have a narrow pro-Roe majority, but that will only be known when and if a case involving the South Dakota law, or another one like it, is reviewed.

That does not mean, however, that supporters of reproductive rights have to stand by the sidelines and watch as the momentum builds to overturn Roe. As Nancy Keenan, the president of NARAL Pro-Choice America notes, "When you see them have a ban that does not include exceptions for rape or incest or the health of the mother, you understand that elections do matter."

In 2006, 36 governships, including South Dakota's, will be up for election. Additionally, the vast majority of state legislative seats in the 50 states will be selected.

The fight over choice has often played out at the margins of our national politics, exploited by cynical strategists on both sides of the partisan aisle more as a tool to mobilize the passionate than to convince swing voters. Rarely, for instance, are television advertisements seen raising the issue on behalf or against a particular gubernatorial or legislative candidate. But the decision of the South Dakota Senate ought to change the equation for 2006, not merely in that state but nationwide. If ever there was a moment when the debate over reproductive rights was ready for the political primetime, this is it.

John Nichols is The Nation's Washington correspondent.

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