On Wed, 8 Nov 2006, Doug Henwood wrote:
> The problem with the SD abortion law was that it was too extreme; more
> moderate restrictions probably would have passed.
That is very probably true. On the other hand, it is not simply an over-reaching that they can fix. Those exceptions are everything for them. Practically, they think they're a loophole you could drive 80% of current abortions through (and they may not be entirely wrong about that). But more importantly is the qualitative difference in thought. If you allow the loophole, you allow mitigating circumstances of human suffering to change what's the right thing to do -- and once you do that, you really are on the slippery slope towards becoming a tolerant liberal.
So they are married to getting a non-exception ban to the Supreme court. And whenever they pass them, they'll drive the mushy center leftwards.
Cynthia Gorney wrote what I thought was a excellent article in the June 26th 2006 New Yorker on the repeal campaign in South Dakota. It's not online, but I attach the section on the exceptions below.
I personally thought it was not only an illuminating view of the inside of the other worldview; it also seemed at least for me to shed a different light on where the constitutive muddiness of the original Roe decision came from. You get a different perspective when you look at Roe as the outcome of the decade of legal and medical maneuvering that preceded it.
</excerpt from Gorney's New Yorker article>
I drove east. The clouds closed in, and as it began to rain I thought about the no-exceptions problem, and the way Ted Hustead had stared at the ceiling, his hands folded in his lap, when I asked him how he intended to vote. The no-exceptions problem has been a source of intense strategic and philosophical division among right-to-life advocates since American states first began reconsidering their felony-abortion laws. Americans under forty tend to assume that the concept of legal abortion sprang into being with the Roe v. Wade ruling, in January, 1973. But, for ten years before that, state legislatures had been studying statutory abortion language inspired by something called the Model Penal Code, a set of sample laws compiled by a group of legal scholars interested in modernizing all the states' criminal statutes. The Model Penal Code's abortion section was written principally by a University of Pennsylvania law professor, Louis B. Schwartz, who understood the magnitude of the conceptual change he was proposing: instead of keeping abortion a felony unless the mother's life was in danger, which is how nearly all the old criminal abortion laws read, Schwartz's model statute rendered abortion "justifiable" -- legally permissible -- for rape or incest, fetal deformity, and the woman's physical or mental health. These categories had been quietly used by doctors for years; it was common knowledge in American hospitals that there were physicians who could occasionally be persuaded to perform abortions that were labelled "therapeutic" but might well have been deemed illegal if anyone had decided to prosecute. Schwartz recast into legislative language three of the most familiar of these therapeutic-abortion reasons (he left out "patient is wealthy and has highly placed hospital connections"). And that was the first formal framing, for purposes of a public conversation, of what everybody now thinks of as the big exceptions.
Right-to-lifers have been arguing about them ever since -- not about whether they're morally acceptable, in strict right-to-life terms. They're not. The fight is over what to do about other people and the big exceptions. Legislative proposals based on Schwartz's abortion language set off battles in statehouses across the country, Colorado was the first state to change its law, in 1967, followed by North Carolina and California. A very few states, like New York and Hawaii, ended up dispensing with the idea of exceptions categories, adopting laws that essentially declared that up to a certain point in pregnancy a woman's reason for seeking an abortion was nobody else's business. But by the end of 1972, when about a fourth of the states had remade their old felony statutes, most had implemented some version of the Model Penal Code law. What is now widely referred to as Roe v. Wade is the Supreme Court's adjudication of two abortion cases, not one: Mary Doe v. Arthur Bokon, which challenged the Model Penal Code law that had recently been adopted in Georgia; and Jane Roe v. Henry Wade, which challenged the old life-of-the-mother-only law in Texas.
By a majority of seven to two, in two consecutive rulings, the Justices found both kinds of laws unconstitutional. It wasn't simply that states could no longer prohibit abortion, the way Texas had; they also could no longer legalize abortion in the way Georgia had, making it lawful only for women who had gone through white-coat inquiries as to whether their circumstances were serious enough to justify terminating a pregnancy. The impact of the dual decisions was enormous, and instantly coalesced what had been a poorly organized array of state anti-abortion groups into a national movement with a paramount agenda item: Undo Roe. Inside the movement, though, a passionate debate was under way: How? And then what?
The Model Penal Code proposals had already begun separating the purists from the pragmatists. At the center of the conflict was the information that has been reinforced in every serious poll on the subject of abortion: by overwhelming majorities, Americans want abortion kept legal for victims of rape or incest. By smaller majorities, they usually want abortion legal in cases of fetal deformity, too, and to protect the pregnant woman's health. "Abortion for convenience," a phrase I heard repeatedly from South Dakotans as they explained what they think should not be legal, is a kind of code in this country, its real meaning is "The woman's reasons aren't adequate," or, less curtly, "I want a say in what those reasons are." In many of the presumptively abortion-hostile states -- that excludes New York, California, and the two dozen or so others that would keep abortion readily available if Roe were overturned -- what many people seem to think they want as a working abortion law is some updated version of the Model Penal Code: abortions restricted by statute to those situations in which the voting majority agrees that they're warranted.
For anyone who has made the complete immersion into right-to-life thinking, a law like that is the equivalent of one that makes slavery legal only for those who really need slaves. The abolitionist analogy goes back a long way among abortion opponents. In their books and newsletters, right-to-lifers often observe that black slaves were full human beings even when most whites and the American courts did not yet see them that way. The same thing holds true for human life from conception on, they tell one another: the unborn are children, not "potential" children, whether the majority agrees or not. This is the foundational right-to-life premise. It is also why the only form of abortion law that makes real internal sense, for a dedicated right-to-lifer, is one with no exceptions categories at all. If the premise is to remain intact, a person who professes to be pro-life but insists on a rape-and-incest exception (which covers most pro-life politicians in this country, including President Bush) is saying one of two things: either it is justifiable to kill children in some circumstances, or what grows in a woman's uterus is a child if the woman had sex voluntarily but not if she was forced into it.
Neither of those options is plausible, under most people's sense of logic and morality. (I did listen to one South Dakota right-to-life pastor struggle to figure out how Scripture might justify redefining a rape-and-incest pregnancy as something other than a child. "The Bible seems to indicate that some things are so evil that the whole action has to be expunged," he mused. But he didn't sound convinced.) So here's the dilemma, if the role model is the nineteenth-century anti-slavery activist: how prudent is it to push people who might otherwise be your allies -- who might be at least partially helpful to your cause -- to examine the inconsistency of their own position? You might win them over to the true-believer ranks: it's a child, so the law can't permit killing it unless that's the unfortunate consequence of trying to save its mother's life. Or you might alienate them so thoroughly that they end up in the enemy camp: abortion has to be legal at least for rape and incest, which means that it isn't a child, which means the foundational premise is wrong, which means abortion is not child-killing after all but, rather, a morally complex act that requires society to weigh one thing against another -- the severity of the pregnant woman's distress, for example, versus developing human life. That is exactly the kind of weighing Justice Harry Blackmun engaged in when he wrote the majority opinion in Roe v. Wade.
<end excerpt>
Michael