Politics of Abortion Back in the Spotlight

The Supreme Court will consider a federal law restricting some abortion procedures, while South Dakota moves toward passing a ban on all abortions save for cases where the mother's life is in danger. Will Saletan of Slate offers his insights.

ALEX CHADWICK, host:

This is DAY TO DAY. I'm Alex Chadwick. Coming up: New Orleans gears up for Fat Tuesday. Next week is Mardi Gras. Karen Grigsby Bates is there, we'll hear from her later in the program.

First, law makers in South Dakota are set to pass a law that would ban all abortions, except to save the life of the mother. This legislation has sweeping implications beyond South Dakota. Supporters are hoping this ban may become a test case to challenge Roe versus Wade, the 1973 Supreme Court ruling that legalized abortion. I spoke about the South Dakota bill with Will Saletan. He writes about Science and Politics for the online magazine Slate.

Will Saletan, this legislation from the state of South Dakota includes this language. The legislature accepts and concurs with the conclusion of the South Dakota Task Force on abortion, quote, "that life begins at the time of conception, a conclusion confirmed by scientific advances since 1973 and the decision of Roe v. Wade." Factually, have there been scientific advances since 1973 that would lead one to say that life begins at the time of conception?

Mr. WILL SALETAN (Reporter, Science and Politics, Slate Magazine): I'd say the South Dakota legislature has it exactly backward. That is, we knew in 1973 that a zygote, at the moment of conception, you have a self-organizing biological entity, and you argue that that is the beginning of a person, or you could argue just as easily today as you could back then that further developments, in terms of fetal development, make you a person, not that moment.

In fact, science has blurred the distinction between whole human beings and parts of human beings, because we now know that we can alter gene expressions so that that zygote can be made into, you know, in effect something, like a skin cell just by changing its gene expression. So, I say science has gone exactly the other way.

CHADWICK: So, this South Dakota abortion ban would seem to fly in the face of years of abortion case law. Maybe that's the point.

Mr. SALETAN: Yeah, I think that pro-lifers are pretty divided about this approach. You know, the purists are people who say, look, abortion is murder. You can't compromise with murder. We should just pass this thing without regard to the composition of the Supreme Court.

The pragmatists have a couple of points. First of all, they say, look. Every life you save is important, so if we can pass laws right now that can be upheld by the present Supreme Court, you know, short of an abortion ban, and can prevent some abortions, let's do that. Not wait for the day when we can stop all abortions.

The pragmatists also say, you know, look important social movements throughout history have worked gradually, you know, and eventually, they've gotten to their ultimate goal. And when we have the votes in place on the Supreme Court, we'll get that result.

CHADWICK: The bill does not include exceptions for rape or incest, the health of the mother, except in cases where her life is in danger, the Supreme Court's been pretty clear on these points, though.

Mr. SALETAN: Yeah, well, with respect to the health exception, that's true. Traditionally, the Supreme Court has required that, but in the New Hampshire parental notification case that the court just handed down, they backed off a little and said, you know, they're not going to throw out a whole law just because it lacks an explicit health exception.

And in the partial birth abortion case that the Supreme Court announced this week that it's going to take in the next session, the Supreme Court signaled that it's willing to hear arguments for a law that explicitly, flagrantly refuses to include a health exception. So, I think pro-lifers are feeling pretty good about their chances, and they're going to test the limits of what the court will allow.

CHADWICK: Because there are two new Justices on the Supreme Court, and both are believed to be quite conservative on the question of abortion.

Mr. SALETAN: Yeah, well, that's true, you know, if you do the vote counting right now on the Supreme Court, there are four clear or likely votes that Roe versus Wade was wrongly decided: Justices Scalia, Thomas, Justice Alito, and probably Justice Roberts. Now, you know, the thinking here is, if in the time this South Dakota ban is being litigated up to the Supreme Court, Justice Stevens retires, and President Bush gets to name his replacement, well, you'd probably then have five votes that Roe was wrongly decided.

So, one question is, do you wait for Justice Stevens? The other question is, even if you get his seat, okay, you have five justices who think it was wrongly decided, but do you have five to overturn it? That's a different matter, because all it takes is for one of those Justices to say, look I think it was wrongly decided, but we're not going to go back and reverse every opinion we think was wrong.

CHADWICK: And one more hurdle for this South Dakota law, Will. The governor still has to sign it. He's a Republican, he's an avowed anti-abortion Republican, but...

Mr. SALETAN: Yeah, well, the thing is the last time I saw a governor in this exact situation was in 1990 and 1991. Governor Buddy Roemer, a Republican in Louisiana, faced exactly this kind of bill, and he was a pro-lifer and all signs indicated that he was going to sign something like this. But when he realized how extreme the bill was, you know, it banned abortion, no exception, even for rape, just like this bill, he got cold feet.

The lobbyists, the pro-choice lobbyists in South Dakota are working on the governor. He's already made some signs he's a little bit uncomfortable about it. I wouldn't count him out.

CHADWICK: Opinion and analysis from Will Saletan. He's a writer at the online magazine Slate, and the author of Bearing Right: How Conservatives Won the Abortion War. Will, thank you again.

Mr. SALETAN: Thank you, Alex.

CHADWICK: And more in a moment on DAY TO DAY from NPR News.

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