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South Dakota Set To Ban All Abortions

In anticipation of a Supreme Court challenge.

SIOUX FALLS, South Dakota (Reuters) - South Dakota became the first U.S. state to pass a law banning abortion in virtually all cases, with the intention of forcing the Supreme Court to reconsider its 1973 decision legalizing the procedure.

The law, which would punish doctors who perform the operation with a five-year prison term and a $5,000 fine, awaits the signature of Republican Gov. Michael Rounds and people on both sides of the issue say he is unlikely to veto it.

...In 1992, the Supreme Court reaffirmed the right to abortion in Planned Parenthood v. Casey, the last direct challenge to Roe v. Wade.

The South Dakota law concludes that life begins at conception based on medical advances over the past three decades.

That leads liberal blogger Aspazia to make this absurd leap in logic in the title of her post on the topic at Majikthise...
Anti-Abortion Judicial Activism Alert
While the intent may be to challenge a judicial precedent, this is (like it or not) a state legislative action completely within the purview of the elected officials of the state of South Dakota. They don't call them lawmakers for nothing. These state lawmakers are accountable (with regularity) to the electorate, whereas judges who legislate from the bench (something liberals tend not to have a problem with) answer to no one. This law will be subject to state judicial review, and likely federal review. If the law if found unconstitutional, it will be struck down.

What's so ironic about the predictable reaction is that it puts those opposed to states legislating on abortion in the position of supporting this paradoxically backward proposition (especially in light of recent same sex marriage rulings):

Legislators legislating = bad
Judges legislating = good

That definitely a position between a rock and a hard place...

Watch for more expressions of outrage that state legislatures (others are considering similar measures) are voting on legislation and more pining for the days when laws were made the old fashion way - by judges.


Listed below are links to weblogs that reference South Dakota Set To Ban All Abortions:

» Unpartisan.com Political News and Blog Aggregator linked with S.D. Senate Bill to Ban Most Abortions

» Diggers Realm linked with South Dakota Passes Law Banning Abortion

Comments (16)

methinks somebody doesn't k... (Below threshold)

methinks somebody doesn't know what "Judicial Activism" means. geeze.

I thought it was when judge... (Below threshold)

I thought it was when judges throw red paint on fur wearers and such. Now I'm confused.

I wouldn't expect a liberal... (Below threshold)

I wouldn't expect a liberal to recognize any differences or separations between the branches of government, Kevin. They've never done so in the past; why start now?

It's amazing how concise an... (Below threshold)

It's amazing how concise and clear the Constitution really is, it would be nice if they could take the time to read it. ;-(


One of the positions (I won... (Below threshold)

One of the positions (I won't call them lies out of courtesy) often stated by pro-abortion partisans is that the majority of Americans support abortion rights.* If this were so, then there would be no need for the courts to find those rights in some "penumbra" of the Constitution. Instead, we'd see state after state passing laws making them legal, or at least setting some boundaries as to what sorts of abortions could be performed. The involvement of the courts would almost certainly be minor, routine and therefore about as noteworthy as their involvement with laws concerning the sale of alcohol. Instead, we've seen state after state pass laws and referenda placing limits on abortions, if not banning the practice altogether.

It speaks volumes about how desperate the pro-abortion side is when they have to rely on the diktat of the courts (actually, only a few judges and justices whose legally reasoning is questionable at best) to keep the procedure legal and unfettered.

(*) I don't know what the numbers are, but I suspect that the majority of Americans support - or at least are willing to tolerate - abortion in the first trimester. However, I think I can safely say that the same majority finds late-term and partial birth abortion to be barbarous and outrageous, and also is not too happy with the idea that minor children can have an abortion without their parents' consent or even knowlege.

I think judicial activism i... (Below threshold)

I think judicial activism is an appropriate term to use in her headline, since the motive behind the passing of the legislation is clearly that the new makeup of the Supreme Court will enable the overturning of Roe v. Wade. This isn't about passing legislation in South Dakota; it's about overturning a Supreme Court decision. And since many would argue that bans on abortion are in essence the state intervening in the private lives of citizens, decisions outlawing abortion can reasonably be termed judicial activism. Of course, those opposed to abortion seem to be unable to grasp that this could even be an argument. Republican advocates of small governement seem to be a little more focused on keeping government out of people's pocketbooks, while being a little more OK with government determining who we can marry and how we control our bodies.

I believe that anti-abortion proponents make some very good arguments, and it's a difficult issue that could use a lot less emotion. What I take exception to is right wingers who try to claim to be against the nanny governemnt, but have no problem when government wants to control things in our private lives that right wingers think need to be controlled.

Chris, that's "Federal" Gov... (Below threshold)

Chris, that's "Federal" Government we want minimized, thereby returning the "power" to it's rightful place, within "the several states".

And since many wou... (Below threshold)
And since many would argue that bans on abortion are in essence the state intervening in the private lives of citizens,

Taxes are also a form of state intervention into our private lives. So are drug laws, laws requiring doctors and lawyers to be licensed, and laws regarding the construction of your home. After all, your salary or wages are a private matter between you and your employer and who cares if you snort a ton of coke, go to a quack, hire a used car salesman to represent you in court, or if you shoddily built shack colapses on your head.

There are two fallacies here. First, there is nothing in the constitution that speaks to privacy or private lives. Second, almost every law outside those regarding rape, murder, assualt, theft could be construed as a restriction on your private life.

decisions outlawing abortion can reasonably be termed judicial activism.

That could only be true if a state had no laws restricting abortions and a judge decided that there was a right to life for the fetus eminating from a penumbra of judicial hallucinations. So far, I have yet to hear of any case in which a judge decided that there should be a ban on abortion when no law was passed by a duly elected state legislature to that affect and seriously doubt that you could find me one either.

Chris, I'm guessing you wil... (Below threshold)

Chris, I'm guessing you will not aruge that laws against homicide are "state[s] intervening in the private lives of citizens", right? How is abortion any different?

Unlike most pro-lifers, I don't think that abortion is murder from a technical standpoint. Murder is an illegal act, and abortion is not. Abortion is homicide - legal homicide.

The fourth amendment speaks... (Below threshold)

The fourth amendment speaks clearly of privacy, "The right of the people to be secure in their persons, papers and effects against unreasonable searches will not be violated" Taxes are also in the constitution 16th amendment. Taxes have been challanged in the Supreme court and the activist court as you call them said they were constitutional. Because the constitution is so vague, judicial review has been necessary from the beginning and it has been a system that has worked well. Without judicial review a state could pass a law that said everyone in california had to go to a Baptist church every Sunday or be fined $25,000 to use an extreme example. Finally to prove a point California recently voted on referendum whether or not to cause minors to have parental notification 48 hours before the procedure the majority vote was no. It will be on the ballot again in Nov and will be voted down again. For the Supreme court to rule otherwise would be judicial activism in our state.

What all of you failed to n... (Below threshold)

What all of you failed to notice is that I never took the stance that government shouldn't intevene in our lives. That's more of a Republican stance, and the subsequent comments have supported the idea that this philosophy is generally applied selectively, depending on whose ox is being gored. As much as people like to point out that there is no right to privacy in the Constitution, which is true, simply stating that doesn't end the argument. It seems to me that Article IX was included in the Constitution precisely because the framers knew that such a broadly written document couldn't be strictly applied to every situation in perpetuity. Thus, it is up to the courts to make best judgement interpretations in light of current events, or to be judicial activists, as it were. Judicial activism is in the eye of the beholder; witness Justice Thomas leading the court (the last I saw figures on it) in votes to overturn legislation passed by the duly elected representatives of the people, having voted to overturn more than 65% of the laws at issue in front of the court (as of mid-2005.)

Kevin-I agree with 9... (Below threshold)

I agree with 92% (it used to be higher, but the longer Bush stays in office the lower it drops) of everything you write, so I've got to call you on this.
The central issue here is not a liberal moonbat who isn't smart enough to frame a logical argument. You're running a rope-a-dope to avoid addressing the real issue--the systematic erosion of women's rights by the Right.
Roe V. Wade is only the first step for Dr. Dobson and others like Ohio State Representative Tom Brinkman (who I most unfortunately voted for, once long ago in what now appears to be a galaxy far away).

You're running a rope-a-... (Below threshold)

You're running a rope-a-dope to avoid addressing the real issue--the systematic erosion of women's rights by the Right.

Since when was killing babies a woman's right?

Chris wrote:As ... (Below threshold)

Chris wrote:

As much as people like to point out that there is no right to privacy in the Constitution, which is true, simply stating that doesn't end the argument. It seems to me that Article IX was included in the Constitution precisely because the framers knew that such a broadly written document couldn't be strictly applied to every situation in perpetuity.

You are starting to get close to the core of conservative judicial philosophy:

1. The list of rights enumerated in the Constitution and especially in the Bill of Rights is not exhaustive;

2. It is also limited to what is written there;

3. The intent of the Bill of Rights was to protect certain basic rights and liberties of citizens from violation by the federal government;

4. The federal government was not intended to be a powerful entity except as regarding certain areas described in Articles I and II such as diplomacy, war, the coining of money, etc;

5. The Constitution was written with the intent that the governments of individual states would be the prime arbitars of rights and justice within their own boundaries;

6. To codify this philosophy, the Founders wrote Amendments IX and X to the Constitution;

7. These two amendments have been rendered virtual dead letters by a steady erosion of states' rights by the federal government;

8. This erosion coupled with a "progressive" and even benevolent impulse in the American political psyche has led to the modern phenomenon of "judicial activism", i.e. the tendency of judges to invent (or, if you prefer, discover) unenumerated rights in the Constitution in order to force the federal government to right some perceived social wrong;

9. This sort of judicial activism is not identical to judicial review (cf. Marbury v. Madison), and has the effect of usurping the power not only of the Congress and the president, but also of the legislatures of the several states and even the people.

Now, all this is not to say that the courts don't have a vital role in protecting the rights of citizens. Obviously, they do. However, it is NOT the job of the court to invent rights, no matter how noble the impulse.

Melissa made a comment about "erosion" of women's rights with regard to abortion. The problem lies in the fact that we have an intersection of a perceived "right" with societal norms and requirements. Melissa apparently believes that women have the right to abort their unborn children; she's certainly not alone in this notion. The majority of the legislators of So. Dakota, who presumably represent the majority of the people of their state, do not agree.

In my opinion, the legislators are fully within their rights to pass the legislation that they did, and I further assert that a judge cannot rule the law unconstitutional because there is no right to abortion enumerated in the US Constitution or in any of its amendments (though there may be some clause in the So. Dakota state constitution that may have bearing).

As to the argument that a woman has the right to control her own body, I agree... so long as the uses to which she puts her body do not violate the law as decided by the people and their representatives. For example, a woman hasn't got the right to smoke marijuana or use heroin. She hasn't got the right to prostitute herself (except in Nevada). She can't legally drink alcohol before the age of 18. She hasn't got the right to take more than one man at the same time as her husband. Etc, etc, etc.

As I indicated in a previous post, abortion should be legal only if (a) a legislature or the Congress makes it legal or (b) they do not make it illegal. Relying on a friendly judge to magically discover the right in the Constitution, the Declaration of Independence, or the back issue of Time magazine he has in his bathroom violates the democratic principles on which our country was founded and makes a sham of our votes.

Melissa: You're running... (Below threshold)

Melissa: You're running a rope-a-dope to avoid addressing the real issue--the systematic erosion of women's rights by the Right.

CorporateLeech: Since when was killing babies a woman's right?

I think there is still an arbitrarily drawn line that separates "baby" from "foetus". I say arbitrarily drawn because, scientifically speaking, there's nothing but stages of development from zygote through middle-age to death.

The adoption of the word "foetus" rather than "baby" or "unborn child" must be part of guilt assuasion method.

CorporateLeech-I'm n... (Below threshold)

I'm not talking about women who use abortion as birth control. I'm talking about Mr. Hunt's so called "special cases" which include a severe risk to a woman's health, and instances of rape or incest.
So you think it's ok to deny a woman the right to choose in cases where pregnancy can seriously damage the mother's health? Because just as long as death isn't guaranteed, she can no longer have an abortion in SD.

That seems to be your opinion, and for the case of the argument, I'll concede that I have no "right to murder a baby"--even if that completely reduces the quality of my life for the rest of my life. My "erosion of rights" statement is a combination of the "special cases" portion of the bill and this:

If SD follows Ohio's lead (Ohio has introduced a very limiting abortion bill--not yet voted upon), soon there will be a bill in the SD State Senate limiting a woman's access to contraceptives (Ohio HB 469). How is this not be a erosion of my rights as a woman when those same drug stores will continue to carry condoms?






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