After years of chipping away at Roe, they weigh S. Dakota's frontal assault.
South Dakota has reignited the battle over abortion - and not just the usual one between opposing camps. A long-simmering debate has also heated up within the antiabortion movement.
Here's the question: Is it smarter to try to undo the nationwide legal right to abortion with one sweeping law - a "full-frontal attack" - or via a series of smaller laws that chip away at abortion rights and severely restrict access?
The easy passage last week by the South Dakota legislature of a bill banning nearly all abortions in the state has moved the question to center stage. The bill contains no exceptions for rape or incest; it allows abortion only when it is deemed necessary to save the life of the pregnant woman. Backers of the bill across the country are urging the governor to sign it, thus sending it on a legal journey they hope will eventually reach the US Supreme Court.
But that gambit could backfire, setting back efforts to overturn the 1973 ruling, Roe v. Wade, which legalized abortion in all 50 states. Currently, the majority of sitting justices are on the record favoring Roe. And there is no guarantee that the two new justices, John Roberts and Samuel Alito, would look favorably upon a petition to reconsider Roe so soon after joining the court, or even in a few years.
"The only thing that asking for too much, too soon, produces is a further reaffirmation of Casey and Roe," says legal historian David Garrow, referring to a 1992 high-court case that reinforced the core holding of Roe. "As we heard countless times from Alito and Roberts at their [confirmation] hearings, every time a precedent is reendorsed, it is further strengthened."
The nation's largest antiabortion organization, the National Right to Life Committee (NRLC), has been notably silent on the South Dakota legislation, and unavailable to the press. Brock Greenfield, executive director of NRLC's South Dakota affiliate and a state legislator, expressed reservations about the bill, even as he voted for it. The governor, Michael Rounds (R), has said he is "inclined to sign" it, though he believes it would be better to eliminate abortion in steps.