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State law could have larger impact

Observer Viewpoint | Thursday, March 30, 2006

A New York Times editorial predicts that a new South Dakota law, banning virtually all abortions, will “jump-start a whole new era of abortion battles.” The law, House Bill (HB) 1215, affirms that “life begins at the time of conception” and prohibits abortion as the only way to “fully protect” the mother as well as her unborn child. Let’s examine why the Times’ prediction is probably accurate.

HB 1215 exempts a “physician who performs a medical procedure … to prevent the death of a pregnant mother.” The physician is required to “make reasonable medical efforts … to preserve both the life of the mother and the life of her unborn child.” Medical treatment causing “accidental or unintentional injury or death to the unborn child is not a violation” of HB 1215. Also, HB 1215 exempts the mother from any penalty for abortion.

HB 1215 rejects the failed incremental strategy of proposing restrictions that nibble at the edges of legalized abortion without ever challenging the essential holding of Roe v. Wade that the unborn child is not a “person” entitled to the right to life protected by the Fourteenth Amendment. The Court said in Roe that if the unborn child is a “person,” the case for abortion “collapses.” The Court, in Roe and since, has declined to decide whether the unborn child is a human being. Its ruling that, whether or not he is human, he is not a person is equivalent to a ruling that an acknowledged human being is a nonperson. That principle, that innocent human beings can be defined as nonpersons and subjected to execution at the discretion of others, is the principle of the Supreme Court’s 1857 Dred Scott case which said that slaves were property rather than persons. It is also the principle that underlay the Nazi depersonalization of the Jews.

In Brown v. Board of Education, the Supreme Court insisted on considering public school segregation in light of present (1954) realities rather than as if it were still 1868, when the Fourteenth Amendment was adopted, or 1896, when Plessy v. Ferguson decreed the “separate but equal” doctrine. Now, 33 years after Roe, the evidence is compelling beyond any doubt that the victim of abortion is human, and that abortion is harmful to the mother and society as well as to her unborn child. HB 1215 will confront the Court with the reality of abortion in a way that even a Supreme Court Justice will find hard to evade.

Some criticize HB 1215 because it does not allow abortion where the unborn child is conceived as a result of rape or incest. Pope John Paul II said in Evangelium Vitae that a pro-life legislator could legitimately vote for an imperfect law in some circumstances. But there is no justification for pro-life advocates themselves to propose laws that validate the depersonalization of human beings. If an innocent human being is legally subject to execution because of the identity of his father as a rapist or as a close relative, he is legally a nonperson. HB 1215 invites the Court to decide whether the law can ever authorize the depersonalization and execution of the innocent.

An unnoticed feature of HB 1215 is its assertion that, under the Constitution of South Dakota, “a pregnant mother and her unborn child” have a right to “due process of law” and “a natural and inalienable right to life.” The Supreme Court has recognized “the authority of the State … to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution” Pruneyard Shopping Center v. Robbins (1980). HB 1215 provides to unborn human beings greater protections under South Dakota law than are provided by the Supreme Court under the Fourteenth Amendment. As an assertion of the reserved power of the State to define, as a matter of state law, the meaning of its own Bill of Rights, HB 1215 affirms the federalism embodied in the structure of the Untied States Constitution as well as in the Tenth Amendment. The Supreme Court has never ruled on this question of whether a state can apply to the unborn child the rule that a state can use its law to protect rights beyond the extent to which they are protected by the United States Constitution. This could be the most important aspect of HB 1215.

HB 1215 adopts the approach taken by Abraham Lincoln on the Dred Scott case, which denied the personhood of slaves. In his Chicago debate with Stephen A. Douglas, Lincoln said: “If I were in Congress, and a vote should come up on a question whether slavery should be prohibited in a new territory, in spite of that Dred Scott decision, I would vote that it should. …Somebody has to reverse that decision … and we mean to reverse it, and we mean to do it peaceably.”

Prof. Emeritus Rice is on the Law School faculty. His column appears every other Thursday.

The views expressed in this column are those of the author and not necessarily those of The Observer.