The defeat of South Dakota’s abortion ban is evidently good news on the merits, and will also hopefully put to rest the ideas that abortion criminalization necessarily represents popular majorities. Even in one of the most conservative states, an even minimally consistent (and the South Dakota legislation still flinched when it came to applying legal sanctions to women who were purportedly guilty of a serious crime) pro-life position is a political loser even in on of the most conservative states in the country.
What this means, alas, is a return to silly, unprincipled abortion regulation that attempts to roll back abortion access through the back door. Appropriately enough, today the Supreme Court will hear oral arguments in the Gonzales cases, which concern the constitutionality of federal legislation banning so-called “partial birth” abortions. Nothing represents the extent to which the American “pro-life” movement is reduced to empty symbolism and intellectual dishonesty than these ridiculous laws. I will have a longer piece about this in the near future, but in the meantime Judge Posner explained the nature of the laws well in his dissent in Hope Clinic v. Doyle:
The wave of “partial birth” abortion statutes that broke over the nation after a description of the D & X procedure was publicized–does not exhibit the legislative process at its best, whatever one thinks of abortion rights. Whipped up by activists who wanted to dramatize the ugliness of abortions and deter physicians from performing them, the public support for the laws was also based–as is implicit in Judge Manion’s defense of the laws– on sheer ignorance of the medical realities of late-term abortion. The uninformed thought the D & X procedure gratuitously cruel, akin to infanticide; they didn’t realize that the only difference between it and the methods of late-term abortion that are conceded all round to be constitutionally privileged is which way the fetus’s feet are pointing. Opposition to the bills that became these laws was at first muted not only by ignorance of the character of a late-term abortion but also by the fact that few women are likely to be affected by the laws. Circumstances conspired, as it were, to produce a set of laws that can fairly be described as irrational. [my emphasis; cites removed.]
The bad news is that this ludicrously arbitrary legislation–which doesn’t protect fetal life even in theory, although it may force women to use procedures that are less safe–is almost certain to be upheld by the Supreme Court, which may well lead to the gutting of Roe‘s health exemption. The difference is Alito replacing O’Connor, which should emphasize both the importance of the two outstanding Senate seats and the election in 2008.