South Dakota: Aftermath Round-Up

–In comments to this post, commenter Joe uncovers a remarkable fact about the SD ban on abortion: “In passing the bill, the Senate amended it to make it even more pro-life, adding a sentence to state that the due process clause of South Dakota’s constitution ‘applies equally to born and unborn human beings.'” If applied seriously, the absurd effects of this claim would be immediately manifest, starting with state micro-regulation of a woman’s pregnancy. Every miscarriage would have to be the subject of a significant policy investigation. And…I can’t go on, it’s too silly. See other commentary about the law from Jill, PFH, and ReddHedd.

—Jack Balkin says that “Because the law bans almost all abortions, it will be immediately challenged in a declaratory judgment action, and a preliminary injunction will issue. That injunction will be upheld by the 8th Circuit, and the Supreme Court will deny certiorari. And that will be the end of the matter.” Sounds reassuring, especially since on its own terms the argument is obviously correct. However, note the caveat: “I am assuming that Justice Stevens will not retire in the next two years. If he does, then there will be only four votes for retaining Roe and Casey, and all bets are off.” I think this is, as Ian Faith would say, considerably more than minor. It is certainly true that as long as Stevens stays on the Court and the Republican’s don’t control the Senate and the White House in 2008, the Supreme Court probably won’t even hear the case, let alone overturn Roe. But it’s not as if these are trivial possibilities: Stevens will soon be 86, and who knows what will happen in 2008, but the GOP have to be heavy favorites to maintain control of the Senate and at least small favorites to retain the presidency. I don’t mean to be unduly pessimistic, but one thing that scares me about Stevens is the precedent of Byron White. There’s a tendency to think that Stevens, who casts the court’s most liberal votes, will hang on until 2009 unless he’s just physically unable. But Stevens is, after all, a Republican; a kind that scarcely exists any longer, but a Republican. White was a very conservative justice (he dissented in Miranda and Roe) on all issues except civil rights and federal power, but he was still a Democrat, and he waited until Clinton captured the White House to retire. Stevens might make a special effort to hang on even if he or his wife encounter serious health problems–but, myself, I wouldn’t bet on it.

To me, the only silver lining of the South Dakota legislation is that is brings the fact that the goal of the death-by-a-thousand-regulations strategy is to gut and then overturn Roe into the open. If I understand correctly, this is why some pro-life groups have objected to the SD law. The strategy is more likely to fail if its desired endpoint is made wider knowledge.

–Speaking of which, I assume most of you have already read Lance’s thoughtful post on the issue. Since I have already written at considerable length about the centrist position Lance stakes out, I will largely outsource the commentary to Barbara and jedmunds. It will not surprise you to know that even in the abstract I don’t think abortion regulations serve any useful purpose and have all kinds of bad side effects. I also don’t think the comparison with the other forms of regulations Lance points out that progressives favor will fly, since abortion (at least from a pro-choice perspective) lacks the structural differences in bargaining power and collective action problems and negative collective externalities from rational individual choices that make, say, some economic and environmental regulation desirable. It seems to me that in light of the uncertainty Lance discusses, it is all the more imperative to leave the decision to the woman’s judgment rather than trying to make subtle and highly contestable moral distinctions using the inevitably more crude coercive authority of the state.

But my bigger objection to Lance’s argument is related to his argument that “because I believe that most people advocating other restrictions are arguing in bad faith doesn’t mean that I can’t see the point in certain restrictions.” This, I think, is my single biggest problem with the centrist pro-choice argument; I simply cannot go along with debating these issues discretely and in the abstract. You can’t have a meaningful debate while ignoring what these regulations are designed to do, and how they will be enforced and what effects they will have; whether they would make sense in some alternate universe in which a woman’s reproductive rights were taken for granted and access very secure and the regulations not carefully designed to have a cumulative impact is simply beside the point. It’s like liberal hawks who wanted to debate the Iraq War while positing a competent administration who shared their goals; even if you might support the war they were defending, it had nothing to do with the actual war being proposed. Any genuinely progressive analysis, I think, has to at least address the issues that PZ dramatizes so effectively. All of these regulations have a trivial effect on affluent women in stable families who live in urban centers, but all of them severely exacerbate the geographic and class inequities that are very difficult to resolve even under a good legal regime. Maybe some of these regulations justify the effects, although I sure can’t see it. But if we’re going to effectively deny some classes of women access to safe, legal abortions, I think they’re entitled to a better explanation than a sort of inchoate sense that abortion makes one queasy and discomfort about the fact that freedom might permit other people to make choices that you wouldn’t.