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SD bans almost all abortions

 
 
blueflame1
 
  1  
Reply Tue 7 Mar, 2006 07:24 am
Law unlikely to ever take effect, experts say

March 7, 2006

BY CHRIS FUSCO Staff Reporter

Despite the social, legal and political buzz it's creating, South Dakota's new law banning most abortions might not even be reviewed by the U.S. Supreme Court and probably never will take effect, legal experts say.

Three of the high court's current nine members supported abortion rights during the 1992 case Planned Parenthood vs. Casey, which was viewed as a major threat to Roe vs. Wade. Two other members, Ruth Bader Ginsburg and Stephen G. Breyer, are Clinton administration appointees who also support keeping abortion legal.

So, barring the death of a justice or an unforeseen resignation, at least five of the nine justices would appear to be against South Dakota's law.

"I'd actually be surprised if this ever reaches the [Supreme] Court," said John McGinnis, a constitutional law professor at Northwestern University. "My prediction is the lower courts will find this an easy case and strike it down. [The Supreme Court] could choose to hear the case or not, and I don't think it's going to."

Harold Krent, a dean and constitutional law professor at Chicago-Kent College of Law, agreed there's "no guarantee" of a high-court review.

South Dakota's legislature set July 1 as the date for the law to take effect, but Krent anticipates a court order will stop that because "on its face, the statute looks inconsistent with prior constitutional rulings protecting a woman's right to choose."

Such an order would be lifted if the Supreme Court took the case and ruled in South Dakota's favor -- something many lawmakers there say is possible because of President Bush's appointments of conservative justices John Roberts and Samuel Alito.

But one expert believes those lawmakers are blowing smoke.

"This is a law that will never go into effect. They knew that," said Erwin Chemerinsky, a Duke University law professor. "They did it because they thought there would be some political value in doing so."
0 Replies
 
Bi-Polar Bear
 
  1  
Reply Tue 7 Mar, 2006 07:28 am
why not just make women get their uterus and ovaries removed when they have an abortion? Then we could eliminate the unwanted pregnancies completely without murdering the wet spot. Then we could make women take a test to see if they pass the "decent american standard" of behavior before allowing them the oppportunity to become pregnant. If they fail the test and are found lacking in the proper morals to conceive, we just sterilize them.

McGentrix, start working on that standardized test and get back to us would ya?
0 Replies
 
Setanta
 
  1  
Reply Tue 7 Mar, 2006 08:24 am
The BBC interviewed the woman who campaigned to get this legislation passed. She very pointedly stated that there were no exclusions for rape or incest by design. Her response to the question of why she had agitated for such a law with such provisions was to say that a rapist or incestuous man should be punished, but not a fetus.

I've found a couple of BBC stories on this topic, but have been unable to find a link to that interview. It was broadcast last night on the BBC World international television news service--maybe someone else would have better luck finding it.
0 Replies
 
woiyo
 
  1  
Reply Tue 7 Mar, 2006 09:52 am
Setanta wrote:
The BBC interviewed the woman who campaigned to get this legislation passed. She very pointedly stated that there were no exclusions for rape or incest by design. Her response to the question of why she had agitated for such a law with such provisions was to say that a rapist or incestuous man should be punished, but not a fetus.

I've found a couple of BBC stories on this topic, but have been unable to find a link to that interview. It was broadcast last night on the BBC World international television news service--maybe someone else would have better luck finding it.


Huh??

I guess a follow up question could be "If YOU were made pregnant by a rapist or your Brother, how would you feel then?"
0 Replies
 
revel
 
  1  
Reply Tue 7 Mar, 2006 10:10 am
In my own personal view; I am against abortion unless a mother's or child's (in the case of twins or something) life is at stake. I don't feel it is right to justify abortion in the case of rape because the unborn child should not pay for the sins of his/her father.

I know all the arguments and I won't change my mind and I really don't want to get into it.

Having said all that, this decision seem to be odd. Unlike the gay marriage thing, the question has been settled in Roe vs. Wade and I don't see how a state can just ban abortions merely because enough people want to in their state.
0 Replies
 
DontTreadOnMe
 
  1  
Reply Tue 7 Mar, 2006 01:42 pm
revel wrote:
Having said all that, this decision seem to be odd. Unlike the gay marriage thing, the question has been settled in Roe vs. Wade and I don't see how a state can just ban abortions merely because enough people want to in their state.


you bring up an important point, briar.

the bill was not presented to "the people" for a vote. it was conceived and passed by the republican dominated state legislature.

when we consider that every poll shows that the majority of americans are against this kind of legislation we are left with the impression that the bill was passed in deference to a smaller special interest group's demands.
0 Replies
 
Wy
 
  1  
Reply Tue 7 Mar, 2006 02:20 pm
I'm of the opinion -- correct me if I'm wrong -- that a subjurisdiction (like a state) can pass a stricter law than the federal one, but not a looser interpretation.

When my brother was in college the students in town outnumbered the residents, and voted to completely legalize marijuana. That lasted about two days, as the town was informed that the stricter state law would take precedence... Does the same thing apply here?
0 Replies
 
ebrown p
 
  1  
Reply Tue 7 Mar, 2006 02:44 pm
Quote:

Does the same thing apply here?


Obviously not. Google Roe v. Wade if you want to know more.

Heck, the entire Bill of rights prevents "subjurisdictions" from passing stricter laws then the federal ones when it violates basic civil rights.
0 Replies
 
Debra Law
 
  1  
Reply Tue 7 Mar, 2006 04:46 pm
woiyo wrote:
Given that rape and incest were not mentioned as exclusions, I doubt this law will stand.


The legislature could not make exceptions for rape or incest in the face of their "legislative findings" that they conjured up to somehow justify the abortion ban. Any statutorily recognized exceptions to the ban would defeat the legistive findings and render them invalid. The legislature found that life begins at the very moment that the sperm penetrates the egg. The legislature statutorily defines a fertilized egg to be an "unborn child." The legislature found that the fertilized egg a/k/a "unborn child" has an unalienable right to life protected by the due process clause of the state constitution.

According to the legislature's theory, it would therefore be a violation of substantive due process if the fertilized egg's fundamental right to life could be lawfully terminated simply because of its status as the product of rape or incest. Substantive due process prohibits punishment (e.g., the state sanctioned taking of life, liberty or property) based on the person's status rather than that person's unlawful conduct. Inasmuch as the fertilized egg is innocent of any unlawful conduct, the fertilized egg's life cannot be taken IF the fertilized egg is deemed a person entitled to constitutional protection.

It also violates the fundamental right to equal protection under the law for the state to provide unequal treatment under the law to persons similarly situated unless that unequal treatment serves some compelling state interest. If an embryo/fetus is a person entitled to equal protection of the laws from the moment the sperm penetrates the egg, then the state has no compelling interest in failing to protect the lives of those persons whose existences came into being through rape or incest while at the same time protecting the lives of all other persons.

Roe v. Wade, however, explicitly found that a fetus is NOT a person.
0 Replies
 
Debra Law
 
  1  
Reply Tue 7 Mar, 2006 06:32 pm
Wy wrote:
I'm of the opinion -- correct me if I'm wrong -- that a subjurisdiction (like a state) can pass a stricter law than the federal one, but not a looser interpretation.

When my brother was in college the students in town outnumbered the residents, and voted to completely legalize marijuana. That lasted about two days, as the town was informed that the stricter state law would take precedence... Does the same thing apply here?


In the United States, we follow a heirarchy of laws. A political subdivision of a state only has "lawmaking power" that a state grants to its political subdivisions through an enabling statute. Usually, a political subdivision, in accordance with its enabling statute, may not pass a local ordinance that contravenes a state law. Also in our heirarchy of laws, a state legislature may not constitutionally pass a state statute (law) that denies or disparages individual rights that are protected state infringements by the United States Constitution.

The United States Constitution is the Supreme Law of the Land. With respect to individual rights of persons, the United States Constitution establishes the floor protections of individual rights against government denials or deprivations.

In Roe v. Wade, the United States Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment protected a woman's LIBERTY interest to determine her own procreative destiny from unreasonable state denials or deprivations of that liberty interest. In the early stages of pregnancy, the woman has the constitutionally protected right to determine for herself (in consultation with her doctor) whether she will continue a pregnancy or terminate a pregnancy.

Because the state has a legitimate state interest in protecting the health of the woman, the state may regulate abortions to serve that legitimate interest so long as state regulations do not place an undue burden upon the woman's protected liberty interests. Thus, most states have regulated abortions by requiring reasonable waiting periods to ensure that the woman's consent to the medical procedure is informed consent. Additionally, states have regulated abortions through parental notification statutes in order to protect the health and welfare of minors.

Once the fetus is viable--capable of existing outside the womb--the State has a compelling interest in protecting POTENTIAL LIFE. At this point in the pregnancy, the State may serve its compelling interest by banning all post-viability abortions EXCEPT when the procedure is necessary, in the doctor's medical judgment, to protect the LIFE or HEALTH of the woman.

The Supreme Court ruled that a fetus is NOT a person. Accordingly, the fetus has NO RIGHTS that are protected by the United States Constitution that may trump the woman's protected liberty interest to determine her own procreative destiny.

A state may give a PERSON more protection of individual rights under its state laws or its state constitution than what the United States Constitution guarantees--but again, as stated above, the United States Constitution is the floor. An example is individual freedom from unreasonable searches and seizures. The Fourth Amendment establishes the floor protections that an individual is guaranteed as against both state and federal searches and seizures. However, nothing in the Fourth Amendment prevents a state from affording the persons within its jurisdiction more protection through state law against state searches and seizures. Similarly, state laws may extend MORE protection to a woman's liberty interest to determine her own procreative destiny than what the United States Constitution provides, but state laws may not provide LESS protection without violating the United States Constitution.

Accordingly, the South Dakota statute that essentially bans ALL abortions--and even bans the use of "morning after" drugs--violates the woman's liberty interest protected by the Fourteenth Amendment to determine her own procreative destiny. The statute is unconstitutional. The state's determination that the fertilized egg's "unalienable right to life" trumps the woman's liberty interests most certainly runs afoul of the Roe v. Wade determination that a fetus is NOT a person and does not have rights.

Here's what the Court said:


Quote:
The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. 51 On the other hand, the appellee conceded on reargument 52 that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.

The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, 2, cl. 2, and 3, cl. 3; in the Apportionment Clause, Art. I, 2, cl. 3; 53 in the Migration and Importation provision, Art. I, 9, cl. 1; in the Emolument Clause, Art. I, 9, cl. 8; in the Electors provisions, Art. II, 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, 1, cl. 5; in the Extradition provisions, Art. IV, 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application. 54 [410 U.S. 113, 158]

All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn. 55 This is in accord with the results reached in those few cases where the issue has been squarely presented. McGarvey v. Magee-Womens Hospital, 340 F. Supp. 751 (WD Pa. 1972); Byrn v. New York City Health & Hospitals Corp., 31 N. Y. 2d 194, 286 N. E. 2d 887 (1972), appeal docketed, No. 72-434; Abele v. Markle, 351 F. Supp. 224 (Conn. 1972), appeal docketed, No. 72-730. Cf. Cheaney v. State, ___ Ind., at ___, 285 N. E. 2d, at 270; Montana v. Rogers, 278 F.2d 68, 72 (CA7 1960), aff'd sub nom. Montana v. Kennedy, 366 U.S. 308 (1961); Keeler v. Superior Court, 2 Cal. 3d 619, 470 P.2d 617 (1970); State v. Dickinson, 28 [410 U.S. 113, 159] Ohio St. 2d 65, 275 N. E. 2d 599 (1971). Indeed, our decision in United States v. Vuitch, 402 U.S. 62 (1971), inferentially is to the same effect, for we there would not have indulged in statutory interpretation favorable to abortion in specified circumstances if the necessary consequence was the termination of life entitled to Fourteenth Amendment protection. . . .

. . . In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive. 63 That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few [410 U.S. 113, 162] courts have squarely so held. 64 In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. 65 Such an action, however, would appear to be one to vindicate the parents' interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem. 66 Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. . . .


http://laws.findlaw.com/us/410/113.html

By adopting a "theory of life" that is subject to widespread disagreement and by statutorily vesting a fertilized egg with an "inalienable right to life" that trumps the woman's constitutionally-protected liberty interests, the State of South Dakota has done exactly what the Constitution does not allow it to do.
0 Replies
 
slkshock7
 
  1  
Reply Wed 8 Mar, 2006 08:26 pm
Rasmussen Reports wrote:
A Rasmussen Reports survey found that 55% of Americans believe abortion is morally wrong most of the time. Just 32% disagree. Americans under 50 are a bit more likely than their elders to believe that abortion is morally wrong.

<<<snip>>>

The Rasmussen Reports survey found that 47% of Americans believe it is too easy for a woman to get an abortion in the United States. Twenty-one percent (21%) say it is too hard, while 21% say the balance is about right.

<<<snip>>>>
Among those who believe abortion is morally wrong most of the time, 74% believe it is too easy for a woman to get an abortion.

Among those who say abortion is morally acceptable, 49% believe it is too hard for a woman to get an abortion.

The fact that a solid plurality of Americans believe it is too easy for a woman to get an abortion helps explain the strong public support for legislation mandating waiting periods before an abortion and other limitations that stop short of an outright ban on the procedure.


Source

For a pro-life person, this is very encouraging...the younger generation is turning against abortion at the same time as the SC. Hopefully public sentiment, legislation, and court opinion will all converge in the not-so-distant future.
0 Replies
 
joefromchicago
 
  1  
Reply Wed 8 Mar, 2006 09:48 pm
woiyo wrote:
I guess a follow up question could be "If YOU were made pregnant by a rapist or your Brother, how would you feel then?"

Conflicted.
0 Replies
 
Debra Law
 
  1  
Reply Wed 31 May, 2006 02:07 am
Press release
http://www.sdhealthyfamilies.org/

SIOUX FALLS, SD -- Today, the South Dakota Campaign for Healthy Families announced the filing of nearly 38,000 signatures on petitions to repeal the extreme abortion ban passed by the legislature and signed into law by Governor Mike Rounds on March 6. Petitions will be filed with the Secretary of State at 2 pm today.

At press events in seven South Dakota communities, supporters of the repeal announced the tremendous support they received circulating petitions across the state.

1,200 volunteers from 138 cities and towns circulated the petitions.

All petitions were circulated by volunteers as opposed to paid staff used by many petition drives.

People from every county in the state have signed the petitions and are calling for the repeal of this extreme measure.

Business leaders and homemakers, ministers and doctors, nurses and teachers, students, construction workers and store clerks joined our effort to ask the voters of South Dakota to repeal the extreme ban on abortions.

"This abortion ban was pushed by radical groups who want our state to be the center of the national legal battle waged in front of the U.S. Supreme Court to overturn Roe vs. Wade," said Jan Nicolay, Co-Chair of the South Dakota Campaign for Healthy Families. "Defending this extreme law, that is clearly unconstitutional, could cost the taxpayers of South Dakota millions of dollars and drag the good people of South Dakota into the center of the national abortion debate," Nicolay continued.

"While the South Dakota legislature refused to let voters have their say on this important issue, we will offer them that chance," said Dr. Maria Bell, the official sponsor of the petition drive. "We are so proud and humbled today, to announce that 37,846 South Dakota voters have signed the petitions and are calling for the repeal of this extreme ban on abortions," Bell continued.

Bell added, "Citizens from all 66 South Dakota counties have signed the petitions calling for the repeal of this far-reaching measure. People from all walks of life, young and old, Democrats, Independents and Republicans are saying this law went too far." "When a woman's health is in danger, all medical options should be available. When a woman is the tragic victim of rape or incest, she deserves compassionate options about her future. Emergency contraception is often not a valid or realistic alternative," said Bell.

"We hope this campaign will be respectful by all participants and also reflect the serious nature of this issue, which has extraordinary legal and medical consequences for the women, families, doctors and hospitals in South Dakota," said Nicolay.

More than 1,200 volunteers from across South Dakota gathered the nearly 38,000 signatures. This incredible show of support is proof enough that politicians in Pierre went too far.
0 Replies
 
Debra Law
 
  1  
Reply Wed 31 May, 2006 02:27 am
Petition filing could halt S. Dakota abortion ban
http://msnbc.msn.com/id/13052111/

Quote:
. . . The South Dakota Campaign for Healthy Families said it had obtained more than 38,000 signatures on a petition aimed at repealing the abortion ban signed into law by Gov. Mike Rounds March 6.

The petition was filed Tuesday afternoon with the secretary of state's office. If at least 16,728 signatures are certified as valid, the scheduled July 1 implementation of the ban would be nullified and voters would be allowed to decide the issue in a November election. . . .

"The people of South Dakota ... do not support this extreme ban," said Jan Nicolay, a former Republican state representative and co-chair of the South Dakota Campaign for Healthy Families.

But Jim Sedlak, vice president of American Life League, a national anti-abortion organization, said his group and others already had started campaigning to keep the abortion ban alive, holding forums and distributing literature throughout the state.

"We have been fighting for just this sort of law for 26 years," Sedlak said. "It (the repeal effort) will be soundly defeated."

The ban's supporters have said they want the law to be challenged in court so it can make its way to a more conservative U.S. Supreme Court. They hope the law will help overturn the 1973 Roe v. Wade decision that established a woman's right to an abortion. . . .



I believe the voters of South Dakota will prove Sedlak wrong. The people of South Dakota know that their legislative representatives went too far when they passed an oppressive law and the voters will repeal the law.
0 Replies
 
BernardR
 
  1  
Reply Wed 31 May, 2006 03:01 am
The most erudite and brilliant Debra L A W, is of course, correct. She indicates that the voters would be able to decide the issue in the November election. Democracy at work--UNLESS--

the issue is an issue floated by the right wing HATERS. I really can't believe that there are so many states which will have referendums this November which will attempt to make DOMA part of their State Constitutions.

Of course, these very bad referendums, based on hate and discrimination, will come to naught because the USSC, with Judges Roberts, Alito, Scalia, Thomas and Kennedy in the lead will declare this hate referendum unconstitutional because it VIOLATES THE MOST SACRED PART OF OUR CONSTITUTION---the FOURTEENTH AMENDMENT--which, of course, protects the rights of all.

I am hoping for a Renaissance in the law. A Renaissance which will back those who look for liberty. Those whose "rights" to liberty are being violated. What ever happened to the movements to advance the cause of Incest,Bestiality, and Pederasty? Aren't they people too? What about their rights?
0 Replies
 
Wolf ODonnell
 
  1  
Reply Wed 31 May, 2006 06:39 am
I can smell a troll...

Laws are there to help ensure down-trodden are not abused. How is bestiality not abuse? How is pederasty not abuse? Your reverse psychology is pitiful at best.
0 Replies
 
joefromchicago
 
  1  
Reply Wed 31 May, 2006 08:52 am
Wolf_ODonnell wrote:
I can smell a troll...

You are right to trust your sense of smell.
0 Replies
 
BernardR
 
  1  
Reply Fri 2 Jun, 2006 06:24 am
I don't cry easily but I must admit that I nearly cried when I scrolled down to the Post written by one of the most brilliant and renown lawyers in Chicago, namely, Joe from Chicago,who, I was certain, would take my paragraphs, entirely devoid of legalese,and tear them to shreds with a few logical paragraphs.

I am very much afraid that Mr. Wolf O'Donnell is not aware that Society is progressing. We are no longer a Puritanical Country. The entire world is becoming secular. Mr.O'Donnell, I hope, is familiar with Ancient Greece. Surely, the country in which Aristotle and Plato among other greats can not be consigned to the ashcan of history.

The Greeks, I assure you, were busily engaged in pederasty on a large scale.

However,I must refer to that learned Classical Liberal,John Stuart Mill, who can bring some light to this subject.

Mill wrote:

quote

"there are people who consider as an injury to themselves any conduct which they have a distaste for" Mill called this a poor basis for public regulation. Mill pointed out that "in its interferences with personal conduct it( the busybody public) is seldom thinking of anything but the enormity of acting or feeling differenly from itself". To allow people to decree that "no person shall enjoy any pleasure which they think wrong, even though that enjoyment is harmless except for the indignation which it arouses, is to open the door wide to persecution,the essential punishment for the affront for thinking or acting differently from the persons doing the punishing"


quotes taken from Judge Richard A. Posner's book- Sex and Reason"--P. 202-203
0 Replies
 
 

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