Beyond Roe vs Wade: let the debate begin

Imagine someone is making a documentary about your family. To your dismay, the filmmakers decide to focus on your horribly embarrassing uncle, the one whose crackpot theories about the powers of bee pollen are exceeded only by his highly dubious politics. Imagine then that the documentary is wildly successful, the subject of numerous press reports and aired on national television every night for a week, and you will have some idea of how it feels to be from South Dakota right now.

It’s never been easy, even at the best of times. Many people don’t know where South Dakota is. Some actually believe it is in southern USA. Foreigners assume it’s in the Midwest (only partly true). But usually the words ‘South Dakota’ inspire blank looks and a hesitant, ‘Oh?’.

Of course this has all changed with the passage of HB1215, the Women’s Health and Human Life Protection Act, a law prohibiting virtually all abortions except those necessary to save a woman’s life. The name of South Dakota is forever changed. Blank stares have given way to sideways looks, raised eyebrows and an exclamation, ‘Oh!’.

Don’t get me wrong, I have always been proud to be from South Dakota. Although profoundly socially conservative, it has, at least up until recently, been a state that defied expectations. Most people consider themselves Republican, but they elected two of the most prominent Democrats of the past 50 years: George McGovern, who ran for president against Richard Nixon in 1972, and more recently, Tom Daschle, the leader of the Democratic Party in the senate. Its people have always had a refreshing ‘live and let live’ attitude that assumes the person next door does not need to be told what to do or how to do it. So how then did it suddenly become the home of anti-abortion extremism? Many South Dakotans are wondering the same thing.

This is not the first time anti-abortionists have tried to use South Dakota law as a vehicle for challenging Roe vs Wade. Wade is the Supreme Court ruling of 1973 which overturned all state laws outlawing or restricting abortion. In 2004, the Thomas More Law Center, an anti-abortion group based in Ann Arbor, crafted a similar bill, HB1119. Governor Mike Rounds vetoed the bill ostensibly because all legal restrictions would be eliminated while the bill was contested, but also perhaps because, as an editorial in the Rapid City Journal on 12 February 2004 put it, ‘We are uncomfortable with the idea that South Dakota will spend up to $1 million to carry water for the movement to repeal Roe vs Wade’.

It seemed like the end of the story, but the particularly opaque nature of South Dakota’s legislative process, coupled with the public’s general disinterest in politics, meant that the bill could rise again without much advance warning. This time abortion opponents have crafted an amendment to the bill that allows for anonymous contributions to help finance the court case.

To be fair, it’s not like people from South Dakota have ever been particularly keen on abortion. Like much of rural America, they tend to hold religious convictions that make them personally opposed to abortion and in favour of restricting its availability. Still, the vast majority, like most Americans, stop short at wanting to outlaw it all together and roll their eyes at ‘the nuts’ protesting outside Planned Parenthood. Perturbed citizens have started a petition drive to put the bill to a referendum and a recent survey of voters showed that 57 per cent would vote to overturn the new law.

In fact, HB1215 tells us more about the Republican Party and its strangely ambivalent stance on abortion than it does about the peculiarities of South Dakota.

At this point, many American readers will be shaking their heads and thinking ‘ambivalent?’. Opposition to abortion is usually thought of as one, if not the issue that defines the Republican Party and divides the USA. And at one level this is true. In the 2004 election campaign, the GOP (the Republican National Committee) made great play of its commitment to extending the fourteenth amendment’s protection of the rights of citizens to unborn children. It describes a commitment to ‘A Culture of Life’ that affirms ‘the inherent dignity and worth of all people’, and ‘[applauds] President Bush for signing legislation outlawing the inhumane procedure known as partial birth abortion and for vigorously defending it in the courts’ (1).

But the reality of the Republicans’ stand on abortion is less straightforward. President Bush has repeatedly said that he does not believe that Americans are ready to ban abortion. What’s more, he has never actually said whether he thinks Roe vs Wade should be overturned, nor will he say whether he supports the South Dakota ban. He is not alone. Senate majority leader, Bill Frist, appearing on the ABC programme This Week, also refused to be drawn on whether he would have signed the South Dakota bill into law, saying ‘Well, again, I’m not going to put myself in that situation’ (2).

Even Virginia Senator George Allen, who was given a ‘100 per cent rating’ by the National Right To Life Committee, waffled on the news programme Meet the Press when he was recently asked if he wanted to see Roe vs Wade overturned. ‘The point is, rather than arguing on a legal term, the point of the matter is the people in the states ought to be making these decisions. And if that’s contrary to the dictates of Roe vs Wade, so be it. Because the way that Roe vs Wade has been interpreted is taking away the rights of the people in the states to make these decisions.’ (3)

So what accounts for the apparent contradiction between Republican rhetoric and their tepid public support for South Dakota’s HB1215?

At a time when the public is growing increasingly cynical about politics and politicians, all parties struggle for issues that allow them to take the moral high ground. Though abortion rights advocates may object that the Republicans’ stand is anything but moral, it is instructive to look at what they actually say. The 2004 GOP platform states that, ‘In signing the partial birth abortion ban, President Bush reminded us that “the most basic duty of government is to defend the life of the innocent.” Every person, however frail or vulnerable has a place and purpose in this world. We affirm the inherent dignity and worth of all people’ (4). What party wouldn’t want to cast itself as the defender of innocence and human dignity?

The ‘Culture of Life’ as it appears in GOP literature does not attempt to uphold traditional ideas about women’s role within the family or society. It doesn’t blame women for ‘problem’ pregnancies and goes out of its way to pledge its commitment to material support for them. But the practical reality of banning abortion is something the Republicans have never had to negotiate. Ironically, apart from an analysis by John Donohue and Steven Levitt (of Freakonomics fame) that identified a purported link between legalised abortion and the falling crime rate, there appears to be very little understanding of what would be the social costs of overturning Roe vs Wade.

Although the full social implications are unclear, we have a pretty good idea of how it would affect the availability of abortion. Abortions would remain legal in states like California and New York, where there are already laws on the books protecting these rights, and be quickly banned in some others. The Center for Reproductive Rights estimates that 20 states would pass legislation banning abortion immediately and that a further nine could follow suit. This would undoubtedly make it more difficult for women in those states to obtain abortions and have a disproportionate impact on young or poor women unable to make the trip to places where they can obtain legal terminations.

But it’s worth considering the impact it would make on the Republicans themselves. The lofty ‘Culture of Life’ will give way to the practicalities of dealing with large numbers of unwanted pregnancies. Republicans’ whole relationship to the issue will need to be renegotiated and they may find that what has been a great political asset in the past will become a serious liability in the present.

Roe vs Wade has provided 33 years of relative stability for American women. But we should not be afraid of having an upfront debate about abortion rights, and asking whether Roe vs Wade can be improved on. Just as the Republicans have crafted a message to their supporters predicated on Roe vs Wade, so too has the pro-choice movement. Poll after poll confirms that the majority of Americans, whether in red states or blue, favour keeping abortion legal and so abortion rights advocates have tended to focus narrowly on the legal challenges to Roe vs Wade on that basis. But there is a difference between passive agreement with the principle of legal abortion and actively supporting a woman’s right to obtain one. HB1215 provides an opportunity to engage in those arguments afresh, and to win them.

This debate is already being played out in South Dakota. It’s unclear as yet how the cards will fall, but I am heartened by letters like this one from Jack Zacker of Sturgis, South Dakota, in the letters page of the Rapid City Journal: ‘First of all, I don’t believe in abortion but I do believe in freedom of choice. Since when do our legislators or governor have a degree to be medical technicians? I believe that these people ought to let their counties know who was involved in passing such an extremist law so when it’s time to vote, we can make a decision on their involvement in our state. Government makes too many decisions already in our lives and we need to change this. We’re all born with this thing called a “brain”. Let’s take time to use it…’ (5)

Now, that’s my kind of South Dakotan.

Nancy McDermott is a writer based in New York City (you can take the girl out of South Dakota, but you can’t take South Dakota out of the girl).

(1) The 2004 Republican party platform: A Safer World and a More Hopeful American. p 84

(2) Sited in ‘Running From Row’ by Paul Waldman, Tom Paine.com, March 22, 2006

(3) Sited in ‘Running From Row’ by Paul Waldman, Tom Paine.com, March 22, 2006

(4) The 2004 Republican Party Platform: A Safer World and a more Hopeful American. p 84

(5) The Rapid City Journal, Letters to the editor, March 31, 2006