South Dakota, leading the way into the 19th century

From 1930 to 1990, the state of South Dakota increased its population from 692,849 to 696,004 — an increase of 0.45%, corresponding to an average annual increase of 0.000757%. Clearly, South Dakota is the place to be.

You might think that I cherry-picked my statistics just to make South Dakota look bad, and you would be absolutely 100% correct. South Dakota's population has increased by more than 11% in the last 15 years, which is more than the Depression-era population drop that skews the 20th-century figures.

Where South Dakota is well and truly lost in a bygone era, though, is in its laws. South Dakota is poised to become the first state since 1973 to outlaw elective abortions. The law just passed, and expected to be signed by the governor, is an intentional direct challenge to the Roe v. Wade decision that has been the framework of abortion law for more than thirty years. The replacement of Justice Sandra Day O'Connor (a conservative who nonetheless voted to uphold Roe) with Justice Samuel Alito (a conservative who opposes abortion and believes that Roe was incorrectly decided) gives abortion foes hope that they might overturn Roe. Additionally, abortion foes gleefully hope that another Justice dies, allowing President Bush to appoint another mossback. Of course, South Dakota's new law will be immediately struck down by the first judge who sets eyes on it, so it's all an exercise in futility unless the state succeeds in taking the case all the way to the Supreme Court and then getting the Supremes to overturn a long-standing precedent.

The principle of stare decisis has risen from obscurity in the last few months with the confirmation hearings for John Roberts and Samuel Alito. It's a very simple idea: judges, even Supreme Court Justices, are obligated to let existing rulings stand unless the precedent has become completely unworkable. For example, by 1954 it was abundantly clear that the 1896 Plessy v. Ferguson precedent of "separate but equal" was completely unworkable, so it was overturned by Brown v. Board of Education. A certain element of predictability and consistency is necessary in law, most especially Constitutional law, and stare decisis fills that need.

Let's look at the abortion issue through that lens. Is it possible cogently to argue that Roe is completely unworkable? For three decades, Americans of all viewpoints have been able to rely on one central fact: Roe made it illegal for states to restrict elective abortion in the first trimester of pregnancy. Some people believe that the Roe decision was wrong, others believe it was right, and still others (myself included) believe that it was right on the principal issue but overreaching in its scope. A significant and vocal segment of the population believes that abortion is murder and must be eliminated except when the mother's life is in danger; a larger but often less vocal segment of the population believes that abortion is a decision best left to individual conscience.

The abortion issue at its core pits two rights against each other: the mother's right to control her own body versus the fetus' right to live in its mother's womb until birth. In the case of a woman who seeks to terminate her pregnancy, those two rights are in direct conflict. If the fetus is not viable [capable of living outside its mother's body], there is no middle ground: either the mother must sacrifice her right to control her body or the fetus must sacrifice its right to gestate to birth. Going back to the early days of English common law, on which most American law is based, the mother had the right to terminate a pregnancy up until quickening, the point where you can feel the baby moving in the womb; quickening generally occurs late in the second trimester. Over the 150 years or so up to 1973, the majority of American states passed laws severely restricting abortion, although in the 1960's and 1970's, about one third of the states reduced or eliminated those restrictions.

The issue gets quite clouded by historical arguments as presented in the Roe decision. At the time of the adoption of the Constitution and Bill of Rights, abortion was legal prior to quickening under common law in all 13 states. Even at the time of the adoption of the Fourteenth Amendment, only a few states (Texas among them) had outlawed abortion. More importantly, though, at no point did the Framers of the Constitution envisage an unborn child as a full legal person. In fact, the language of the Constitution is unambiguous that full legal personhood begins only at birth. Thus, as a matter of law, an unborn fetus does not have the right to life under the U.S. Constitution, since that right is conferred at birth. That point is not in dispute. What is in dispute is when, how, and to what extent individual states can grant such a right.

The Ninth Amendment says "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In the context of the abortion discussion, that means that the lack of a specific right to abortion in the Constitution does not necessarily mean that the right does not exist. The Ninth Amendment doesn't give the unborn fetus any rights at all, since the fetus is not yet legally a person.

The Tenth Amendment says "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Here, that means that the right to decide abortion policy belongs to the states or to the individual citizen. Thus, the Tenth Amendment would tend to favor the right of states to regulate or even outlaw abortion. It is only through the historical arguments regarding the right to privacy — never explicitly mentioned in the US Constitution, but found in the "penumbra" of the Bill of Rights by several Supreme Court decisions — that the right to regulate abortion could be denied to the states.

Section 1 of the Fourteenth Amendment says "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." As I noted above, this amendment does not apply to unborn fetuses. If we find the right to privacy in Constitutional interpretation, though, then the states cannot regulate abortion without a compelling state interest. Much though abortion foes see protecting the lives of unborn children to be a compelling state interest, it is not within the legal meaning of that phrase, since unborn children are not yet legal persons.

Those who seek to overturn Roe v. Wade at the Supreme Court face a daunting challenge: demonstrating that the 1973 precedent is not only incorrect, but unworkable. Absent a Constitutional amendment to permit states to restrict abortion, it is difficult to see how you could argue that Roe is unworkable. After all, Roe has worked for over 30 years. Pro-life or pro-choice, you know where the law stands, and no citizen of the United States has ever been deprived of any right because of Roe. While the right to privacy is not explicitly mentioned in the Constitution, neither is any right to life for the unborn.

If you want to see abortion restricted or outlawed, going to the Supreme Court is the wrong route to your goal: you need a Constitutional amendment. On the other hand, if you want to protect the right to early-term abortion, relying on the Supreme Court is also the wrong route to your goal: you need a Constitutional amendment. The bottom line is that Roe v. Wade didn't settle the abortion issue, and no future Supreme Court decision is likely to. The solution must be found in the political arena, not the courts. We as a nation need to find a compromise that all sides can live with, instead of fighting pitched battles with one extreme bitterly antagonistic to the opposite extreme.

Technorati tags: Abortion, Law, Politics, Commentary, South Dakota, Supreme Court, Roe v Wade