South Dakota’s legislature is considering “a bill making abortion a crime unless it is necessary to save the life of the mother.” (Link via Evangelical Outpost).
Pro-lifers are by no means united in support of this bill (here’s the text of the bill, by the way). Some worry that the bill would cost South Dakota taxpayers a lot of money to defend in court, but will ultimately be found unconstitutional and thus not actually prevent any abortions. Others seem to believe that the bill takes advantage of a loophole in Roe v. Wade. From Christus Vector:
The first paradox is that the bill is not only constitutional under a proper interpretation of the Fourteenth amendment, it may very well be compatible with Roe v. Wade. This is because the bill contains explicit findings that human life begins at conception, and that the state therefore has a compelling interest in the protection of that life. This is important because the court in Roe declined to decide when life begins, saying instead that since it wasn’t clear that life did begin at conception that possibility couldn’t override a women’s right to have an abortion. This, combined with the deference generally given to legislative findings of fact, means that it should be possible for a state to provide the missing basis for what the court in Roe admitted would be a compelling governmental interest in prohibiting abortion.
As I pointed out in Christus Vector’s comments, I don’t think the legal argument has much merit. There are two questions to be considered: First, is the Supreme Court obliged to defer to legislative fact-finding, and second, what does Roe really say.
Regarding deference, the conservatives on the Supreme Court have made it clear that they don’t consider themselves bound by congressional fact-finding. See, for instance, their decision overturning parts of the Violence Against Women Act (VAWA), on the grounds that VAWA had no relationship to interstate commerce, despite extensive congressional fact-finding which found just the opposite.
As Clarence Thomas once wrote (pdf file):
We know of no support… for the proposition that if the constitutionality of a statute depends in part on the existence of certain facts, a court may not review a legislature’s judgment that the facts exist. If a legislature could make a statute constitutional simply by ‘finding’ that black is white or freedom, slavery, judicial review would be an elaborate farce. At least since Marbury v. Madison (1803), that has not been the law.
As for the supposed loophole in Roe, to me it seems like wishful thinking on the part of some pro-lifers. Here’s the relevant passage from the Roe v. Wade decision:
Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.
It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question.[....]
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.
It seems clear that the logic of Roe is not threatened by South Dakota’s bill declaring that life begins at conception – just cross out “Texas” and write in “South Dakota,” and the problem is solved.
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