Lawmakers in South Dakota are poised to give final approval to the most sweeping ban on abortion in nearly two decades. The state's only abortion clinic performs about 800 procedures a year — of the nearly 1 million done nationally. But backers of the bill say they intend for it to reach well outside the state's borders.
Leslee Unruh has been working towards this moment for 21 years. She heads the Alpha Center and Abstinence Clearinghouse, which counsels women with unintended pregnancies on abortion alternatives. She says she didn't have much luck when she first started lobbying the legislature to restrict abortion. "There was a time when it was tough to get even parental consent" laws, she noted.
But her work will pay off when the South Dakota House gives expected final approval to a measure that would ban all abortions in the state except those needed to save the life of the pregnant woman. The state Senate, which approved the bill Wednesday, rejected amendments to allow abortions in cases of rape or incest, or to protect the pregnant woman's health.
Unruh says she's confident that Republican Gov. Michael Rounds will sign the measure. And she makes it clear she hopes the law will have a broader impact. "We've been very successful to chip away at the laws of Roe v. Wade in South Dakota, and we think the rest of the country should really be following us, and following the heartland... and this is definitely planned to go after Roe v. Wade," she said.
That case is the 1973 Supreme Court decision that legalized abortion nationwide. Eve Gartner, senior staff attorney for the Planned Parenthood Federation of America, says the only way the South Dakota law could take effect is if the Supreme Court were to throw out Roe. "This law is a direct challenge to Roe v. Wade," Gartner said. "And if this law is upheld it would mean that abortions could be banned anywhere in this country."
This isn't the first time a state has tried to outlaw abortion since Roe was decided: Utah, Louisiana and the territory of Guam all passed measures in the late 1980s that were subsequently blocked. That flurry of state laws came after the Supreme court signaled that it might be willing to accept more restrictions on abortion in the 1989 decision Webster v. Reproductive Health Services of Missouri.
Gartner says the timing of the South Dakota measure is no coincidence either. It's coming just as two potentially anti-abortion justices, John Roberts and Samuel Alito, have joined the court. "Clearly the people that want to make abortion completely unavailable in this country have timed this so that a newly constituted Supreme Court can overturn Roe v. Wade," she said.
But that strategy carries a big risk — one that has divided abortion opponents. The question has been whether to pursue incremental changes — including the so-called partial-birth abortion ban the Supreme Court just this week agreed to hear — and hope to chip away at the right to abortion, or to go for the big change.
John Green, a political scientist at the University of Akron, says that by making the big move, anti-abortion forces could very well face a setback even with the newly configured court. "Based on the records of Judge Roberts and Justice Alito, it looks very unlikely that they would institute sweeping changes in abortion law or, in fact, in any other area, because these are strict constructionists, very careful judges that believe in incremental change, whatever their personal philosophy might be," Green said.
There's another aspect of the South Dakota law that makes it potentially significant: It defines human life as beginning at the fertilization of egg and sperm. "Most of the debate so far has been about what is legal, whereas most of the debate has not been about defining when life begins or what life exactly is. And that could have broader ramifications in other areas of the law as well," Green said, including areas such as assisted suicide, the use of embryonic stem cells, or even other areas of medical research.
And he says there's one more risk for abortion opponents in trying to ban the procedure outright. Every time the core right to abortion appears to be in jeopardy, public opinion has tended to swing the other way — towards abortion rights.