Tuesday, October 28, 2008

Proposed South Dakota Abortion Law: Blatantly Unconstitutional and Cruel to Women

South Dakota already has one of the lowest rate of abortions in the country. Only one medical facility in the state provides abortion services, and Planned Parenthood essentially "imports" those doctors to the state. Local doctors do not want to earn a reputation as "baby killers."

In 2006, the South Dakota legislature passed a law that banned all abortions unless they were necessary to protect the "life" of the mother. This law blatantly violated Supreme Court doctrine, which states that abortion restrictions require life and health exceptions, and that prior to viability, states cannot impose an "undue burden" on a woman's right to terminate her pregnancy. Banning abortion altogether is indisputably an undue burden. Although the governor signed the legislation, voters repealed it in a referendum.

On November 4, South Dakotans will consider a new abortion law that purportedly avoids a constitutional problem because it contains a health exception. This law is still unconstitutional under current doctrine. I emphasize "current" because a four-justice bloc (Roberts, Scalia, Thomas, and Alito) on the Supreme Court wants to overrule Roe v. Wade altogether, while another (Kennedy) has embraced both liberal and conservative positions on the issue.

In addition to raising constitutional concerns, the new law treats women callously and seriously disregards their health and privacy. Below, I discuss some of the more offensive provisions.

A "Near-Death Exception," Masquerading as "Health Exception"
The proposed law indeed contains a "health exception," as required by current Supreme Court doctrine. But it narrowly defines a threat to the mother's health as "a serious risk of a substantial and irreversible impairment of the functioning of a major bodily organ or system of the pregnant woman should the pregnancy be continued and which risk could be prevented through an abortion." This is the most stringent interpretation of a health impairment I have seen in any proposed abortion statute. It looks like a "near-death" provision, rather than a health exception. This provision contradicts current caselaw which basically leaves it up to physicians to determine whether an abortion is medically necessary due to a physical or psychological condition of the mother.

Cruelty to Rape and Incest Victims
The proposed law is probably the most obscene in its treatment of victims of rape and incest. For sexual assault victims, the law permits an abortion regardless of whether the pregnancy threatens the woman's life or health. But exercising the right to choose in this extremely delicate situation comes with many intrusive preconditions.

First, the proposed measure would require that these women have an abortion within 20 weeks (shorter than the normal 6 months) after their "last menstrual period." Furthermore, prior to performing the abortion, the doctor must call law enforcement officials and report the woman's name, address, and date of birth, the date and location of the assault, the perpetrator's name and address (if known), or (if not) a description of the perpetrator. To make matters worse, the provision would require doctors to obtain DNA samples from the woman and fetus and turn them over to law enforcement.

Incest victims would have to disclose to law enforcement their familial relationship with the perpetrator. The proposed statute defines an incest victim as a woman under the age of 18. Subjecting minors to these procedures is particularly cruel and insensitive, particularly the requirement that the victim provide the name of the assailant.

Probable Litigation
Recent polls indicate that the measure stands a great chance of passing. If so, the law would certainly generate an immediate lawsuit and would place the issue of abortion back in federal courts. Neither presidential candidate has discussed this issue prominently (except for during the last debate), but the composition of the Supreme Court could determine whether Roe, already weakened, remains "good law." My guess is that under the current composition of the Court, Kennedy would join the liberals and strike down this law, but predicting the outcome of cases is a very risky business. Although the Court's doctrine on abortion tends to reflect public opinion (disfavoring partial-birth and late-term abortions, but wanting women otherwise to have a right to choose), a new conservative appointee could very well provide the majority necessary to overrule Roe.

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