Commentary Abortion

South Dakota Banning Abortion Without Banning Abortion?

Amanda Marcotte

Will the new abortion restrictions in South Dakota constitute a de facto ban of abortion in a state where the voters rejected a direct ban in 2006? It seems that legislators may have given the power to ban abortions to anti-choice groups in the state.

Last week at the American Prospect, Scott Lemieux published a lengthy debunking of the myth that the Supreme Court decision that controls abortion rights in the U.S. is Roe v. Wade.  In fact, Roe was supplanted in 1992 by Casey v. Planned Parenthood, a fact often treated as trivia that only matters to political nerds, but which has profound implications.  Lemieux explains:

In the Casey decision, the court upheld Roe but changed the precedent in two important ways: It made viability the point at which the states could prohibit abortion, and it allowed restrictions on abortion rights as long as they didn’t place an undue burden on the mother.

In this, the Court invited the blizzard of anti-abortion regulations that make it difficult, if not impossible, for many women to obtain abortions today. Casey is remembered because the Court declined to overrule Roe, but in some respects, it was really a victory for people who want the state and federal governments to restrict abortion access.

He ends the piece by saying, “None of this is to say that there isn’t a major difference between the Casey regime and overruling Roe entirely.”  This is true, but it’s worth noting that the difference is shrinking every day, to the point where there won’t be any difference at all.  Casey didn’t overturn Roe immediately, but it kicked off a 20-year process that has resulted now, in 2011, in what appears to be a functional overturn of Roe.  While abortion providers and patients have kept on keeping on in the face of ever-tightening restrictions—demonstrating the power of the demand for this service—South Dakota may have just managed to ban abortion without actually banning abortion outright.  They did it by pushing the “undue burden” restriction way past the “undue” part and into the “impossible” territory. 

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How did South Dakota do it?  The new law requires women seeking abortion to speak to the doctor, then wait 72 hours, then get counseled at an anti-choice propaganda station called a “crisis pregnancy center,” only after which would she be allowed to obtain an abortion. This law received quite a bit of attention for overt misogyny inherent in the implication that women are too stupid to be aware of what they’re asking for when they seek abortion, or that women are so ignorant and incurious that they can’t be expected to have considered anti-choice arguments unless forced.  But it’s looking like this law may do more than that, and may actually make abortion impossible to get in South Dakota. 

This works in two ways.  Right away, it was clear that the 72-hour waiting period was an attempt to force the sole abortion provider in the state, a Planned Parenthood in Sioux Falls, to drop the service.  The doctor that performs abortions flies in to provide the service, and this requirement is obviously intended to push out any doctor who doesn’t work full time at the clinic by making the travel requirements onerous. 

The “counseling” requirement seemed more condescending than truly burdensome at first, though it is true that many women seeking abortion really don’t have the flexible schedule to work in a few hours to be hectored by anti-choicers before obtaining their abortion, which pushes this requirement from being irritating and sexist to being truly an obstacle.  But recent news indicates that something more devious is likely going on. As Robin Marty reported last week, not a single crisis pregnancy center has agreed to counsel patients seeking abortion so that those patients can fill their requirements to get their abortions.  Not even the centers that lobbied to get the requirement pushed through.  Without centers willing to say they saw the patients seeking abortion, patients could be caught in a red tape nightmare that makes getting abortions impossible.

It’s always possible that this is a paperwork oversight, but experience tells us that anti-choicers don’t play by the normal ethical rules of fair play (which comes with the territory when you’re organized around the immoral desire to force unwilling women to bear children), so we have to consider the alternative, that this was the plan all along.  At the end of the day, the “counseling” requirement is using bureaucratic nonsense to create a situation where women who want abortions have to get consent from people who think that every woman should be forced to have a many children as possible, whether she likes it or not.  Of course they’re going to refuse to give that consent.  Through a paperwork shuffle, the state of South Dakota has given the power to control abortion access to anti-choicers, and their choice—surprise, surprise—is a ban.

This should infuriate anyone who values the rule of law, even if they’re not invested in reproductive rights.  (Though I’m hard pressed to imagine what such a person would look like.)  To be clear, anti-choicers in South Dakota had to ban abortion through duplicity not just because of the Supreme Court, but also in order to get around the will of the voters of the state, who rejected an abortion ban in a statewide vote in 2006.  And since anti-choicers can’t get the voters to back a ban on abortion and give the police the authority to enforce it, instead they’re going to quietly ban abortion and give religious fundamentalists like Leslee Unruh the power to enforce it.

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