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The Independent

South Dakota Ban Opens Nationwide Fight over Abortion


Campaigners are preparing to challenge a landmark decision in South Dakota to ban abortions in almost all circumstances – a move that will force the Supreme Court again to address one of the most divisive issues in the US.

New legislation signed earlier this week by the state’s Governor, Mike Rounds, makes abortion illegal in every circumstance except where the life of the woman is threatened. There are no exceptions, even for cases of rape or incest, though in these circumstances women could receive emergency contraception. Doctors and medical staff who provide an abortion face up to five years in prison.

Abortion rights campaigners say they will be challenging the legislation which appears clearly to contravene the 1973 Roe v Wade ruling by the Supreme Court which provided women with the right to legal abortion. It is likely that a judge would suspend the new legislation before it comes into effect on 1 July, thereby opening the way for the matter to be decided by the Supreme Court.

“We fully intend to challenge this law,” said Kate Looby, state director of Planned Parenthood, which operates South Dakota’s only abortion clinic. “It’s just a question of how.”

The legal tussle, which both sides believe will take years to conclude, will take place against the backdrop of a continuing and fierce debate in the US about access to abortion. It is also, in part, a debate about tactics: anti-abortion campaigners debated long and hard among themselves before launching this “direct frontal assault” and many thought it would be more effective to continue to chip away at abortion rights.

But the discussion was won by those who believed that the recent appointment to the Supreme Court of the conservative justices John Roberts and Samuel Alito has provided a rare opportunity to overturn Roe v Wade. Similar legislation is being considered in Mississippi.

Frances Kissling, president of the abortion rights group Catholics for a Free Choice, said it was unlikely the Supreme Court would overturn Roe v Wade, partly because the issue of abortion was such an effective rallying cry for right-wing Republicans. “To the extent that the court is influenced by politics – which it is – [they would] want to preserve it,” she said.

But she said that, while upholding Roe v Wade, the court could, in its ruling, indicate to anti-abortion activists that it would support greater restrictions on abortion: “The message would be in the language.”

Although he put his signature to the South Dakota legislation, Governor Rounds was among those anti-abortion campaigners who believed a different approach might ultimately be more successful. “Personally I think this court will be more interested in looking at different aspects of Roe v Wade rather than the direct frontal assault, but we’ll never know unless someone tries,” he said.

Along with gay rights and the death penalty, abortion remains one of the great dividing lines in the so-called “culture wars” played out in US society.

Polls portray a complicated picture but clearly suggest that the decision in South Dakota is out of touch with the view of most Americans. In the most recent survey, commissioned by The New York Times in January, 38 per cent supported access to abortion, 39 per cent felt abortion should be available but with stricter restrictions than at present and 21 per cent supported making abortion illegal.

Abortion rights activists say the South Dakota law will serve as a wake-up call for those who support abortion but have become complacent. “We see this is about more than just South Dakota. It’s about the country,” said Nancy Keenan, the president of the pro-abortion group NARAL Pro-Choice America. “The bottom line in all of it is – elections matter.”

Some objected to the new law as it failed to take into account the circumstances of a woman’s pregnancy. “Not allowing an exception for rape, incest and the health of the mother is a radical position,” said the state Democratic representative Pat Haley, who opposes abortion but voted against the bill.

Some opponents of abortion simply celebrated. Leslee Unruh, who set up a centre to counsel pregnant women, said: “We’re ordering lobster and having a party. We are thrilled.”

Roe vs Wade: the ruling under threat

Though the Supreme Court made its historic Roe v Wade decision 33 years ago, ruling that the US Constitution afforded women the right to safe and legal abortion, creeping restrictions mean access has been severely eroded.

Figures compiled by National Abortion Federation (NAF) which supports abortion rights, said 88 per cent of all US counties had no abortion provider. In non-metropolitan areas the figure is 97 per cent. Indeed while there is only one abortion provider in all of South Dakota, it is used by women from across the region.

The NAF says distance is not the only obstacle. A shortage of trained abortion providers, state laws that make getting an abortion more complicated than is medically necessary, continued threats of violence and harassment at clinics and restrictions on state and federal funding have meant many women struggle to obtain an abortion. “This problem is getting worse,” Marlene Gerber Fried, director of the civil liberties and public policy programme at Maine’s Hampshire College, wrote. “Abortions are economically out of reach for so many women, primarily because of restrictive laws and policies.”

Sarah Weddington, a lawyer in the 1973 Roe v Wade case, said: “When we won Wade, if anyone had said to me that I would still be talking about this in 30 years, I would not have believed them.”

This article originally appeared in the 8 March 2006 edition of The Independent.

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