1

I agree with you that this could turn out to be a good thing; either way, it promises to be fun to watch. Abortion (the issue) has been relatively dead for the last 10 years, and this could return it to people's consciousness.

And then there is Chuck Schumer's amendment to the stalled bankruptcy bill...

2

Joe-
I think this is outstanding! It is good to see the pro-life side taking the fight to the other side for a change. What seems like a fight that has been stuck in a defensive mode for years now appears to have made the "issue" the issue. I don't see how the court could ignore this and I think there are some states rights issues that this would raise also.

All this needs now is some publicity...

3

This is great and publicity could help tremendously.

But scientific evidence and the question of when life begins has been passe, even moot in the abortion debate (even thought the debate is not at the forefront of the public conciousness). Both sides acknowledge that physical life begins at conception.

While the beginning of physical life is a good argument, a far more persuasive one is the argument of personhood. It would be better if the legislature had included (and maybe they did) a clause suggesting that personhood is conveyed at conception, and give strong arguments from logic and metaphysics to justify that. With this addition, the legislature's position would be far more difficult to refute in court.

4

Of course, after reading the bill again I realized that they do say "human life" instead of "life." They should, however, define "human life" as personhood, and in such a way as to make euthanasia, murder, suicide, etcetera just acts if the bill was overturned by the courts.

5

While I would love to see this go all the way to the Supremes and "spark some controversy" (especially now that some polls are showing an increase in people who believe abortion is worng) I would be surprised if that actually happened. I disagree with your statement that the law will "probably" be decided by the Supremes. As a long-time court watcher, I think the more likely scenario is that this law will be struck down by a lower federal court and the Supremes will simply decline to review. This would not generate much publicity as the Supremes decline to review hundreds of cases a year.

But I do hope I'm wrong, I would like to see a return to the discussion table on this issue.

I also hope Bush gets re-elected so there is a chance that a pro-lifer gets on the court. Rheinquest, Stevens and O'Connor are getting VERY old and I would hate to see someone like Kerry get three appointees.

6

O.K. here is a question for you legal scholars: Why does the Supreme Court need to get involved at all? Is it just because that seems the "normal" thing to do? Or is there some legal, Constitutional basis?

As I have been studying the Constitution for the past few months, I have been shocked to find that individual states are supposed to have a *lot* more say over what goes on in their state than the federal government does. It seems that just the opposite is true when I look at the news. But in the Bill of Rights, Amendment X (10) seems to allow the states to govern themselves, without the feds getting involved, when it states: "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."

So after reading this amendment, I am really surprised at the limited amount of power it seems the feds want the states to have. I wonder if there is some unknown point to the Constitution that allows them authority to babysit the state legislator's laws the way they do.

Thanks to anyone who can clear this up for me.

7

Simple, the Feds want ultimate control of all things in America, and to exercise that control they use the excuses of:

1 - The "welfare" clause
2 - The Commerce clause, or
3 - The supremacy clause.

They simply ignore both the 9th & the 10th Amendments (as well as any part of the Constitution that limits the federal government), and use misreading of those 3 clauses to claim authority over every part of America.

8

After reading Chris' post, I searched the supremacy clause since it was the only item I wasn't familiar with. After finding that it is found in Article VI of the Constitution, I searched and found a pretty in depth article located at:
http://www.carreonandassociates.com/supremacy-law.htm

Thanks, Chris!

9

I compliment all of you for taking the stand against abortion. We are God's special creation. The bleeding hearts of our nation find it more important to save every little bug, animal, etc, but do not value the life of God's creation who are created in His image. I will be praying that you will be successful in your endevour.

10

Actually, I realize that I slightly misstated & should probably clarify 2 things...

1 - The supremacy clause is valid.

2 - The welfare, commerce and supremecy clauses aren't typically all used independently.

The way feds assert (usurp?) control, is by using the welfare and commerce clauses first to claim Constitutional authority in issuing edicts.

Then, the supremacy clause is used to deny states right & powers that belong to them, effectively nullifying the 9th and 10th Amendments.

However, only Constitutional federal laws have any weight. An un-Constitutional law is invalid anyway, whether it is federal or not, so the supremacy clause doesn't even apply to invalid fed laws.

In any case, I applaud SD's bill & sincerely look forward to its passage. Even though it is extremely well worded (anticipating court arguments, I think), it still will be challenged in court, and likely dismisssed by the dress-wearing lawyers. Nonetheless, I take a great amount of heart from the courage of SD to do this.

:)

11

Interesting. I use to discuss the abortion issue on this site

www.exilen.org

There I have mentioned this good news from South Dakota. I have also some bad news. Our government I live in Sweden has now decided that they want to change the abotion law so that foreign mothers can kill their children here. This is because nearly all abortions are illegal in our neighbouring country Poland.

I will also say that we that are the killing of unborn children are treated like extremists in media. I wonder how is it in America?

12

The legislation in the South Dakota legislature is most certainly not a "bold, pointless gesture." It demonstrates that a state that has two very pro-abortion US Senators (Daschle and Johnson), including the ranking Democrat in the US Senate, can also have a very pro-life population and state legislature, and that that political system is willing to challenge the pro-abortion hegemony to its face.

At the South Dakota US District Court, where the opposition will certainly file the lawsuit and injunction, there are four District Judges (1 by Reagan, 2 by Clinton, 1 by GW Bush). It is probably likely that the judge chosen to adjudicate the case will be sympathetic to Roe v. Wade, but this is not necessarily critical. The Court of Appeals is where I think the Thomas More people are banking their bet for success.

The automatic right of appeal will land the case in the US Court of Appeals for the 8th Circuit, where a 3-judge panel would be chosen from a list of judges that include:

- one Reagan appointee (Bowman)
- two Bush Sr. appointees (Loken and Morris Arnold)
- two Clinton appointees (Murphy and Bye)
- four Bush Jr. appointees (Riley, Melloy, Smith and Colloton)

This provides a 7-2 majority of Reagan/Bush v. Clinton appointees. After several hours of searching the Internet and a number of pro-abortion and pro-life advocacy sites for information about previous 8th Circuit decisions on abortion cases, only Carhart v. Stenberg (1999) appears. A conservative Reagan appointee (Roger Wollson, since retired) joined in liberal Carter-appointee Richard Arnold's opinion to rule Nebraska's partial-birth abortion ban unconstitutional based on overbroadness, a decision that was infamously upheld by the US Supreme Court in Stenberg v. Carhart (2000). This might be an important lesson in the unpredictability of so-called "conservative" judges, especially when it comes to "conserving" abortion rights. We'll have to see.

The "Benchmark Campaign to Save Roe" gives this court a D- grade for protecting abortion rights -- the seven Reagan/Bush appointees might be willing to reconsider the Roe v. Wade decision, at least as much as any Court of Appeals Circuit in the country would be.

If senior (retired judges) are included on the panel for the case, it would shake up the calculus (probably moreso in the liberal direction), but we'll see.

A legal/political strategy has to be moved ahead. Legitimate and intelligent action must be taken, even if the opposition seems to have a hammer-lock on the legal and political mechanisms that we must rely on for positive change to occur. I think that this is a good choice of both the state legislature and the federal court by Dick Thompson and the Thomas More Legal Center.

I am praying that this will at least raise awareness of the abortion issue for nominal pro-lifers and create some much-needed energy and debate on what has become a "nibble-round-the-edge" affair for too long.

God bless,

Tom Skrobola

13

Thanks, Thomas. Excellent analysis.

14

From a personal standpoint and speaking in plain English, making abortion illegal would have devistating effects to Americans. Ask any American why they are proud to be an American and the response will almost always be "FREEDOM". Personally I would never have an abortion, nor do I think it is "right", yet I support free choice. We are American and taking away liberties like this will not stop abortion, it will kill woman that don't want children. Banning it will not stop people from doing it!
Another part to think about is, How many children are found in trash cans now? How would that average change if abortions were illegal?

15

So you want to take away all laws because of freedom. Laws are necessary to protect peoples freedom and if someone is killed he has ceartainly no freedom.

16

dob, don't exaggerate TES's post. In fact, by wanting to make abortion illegal, wouldn't that, in effect, "take away" a law?

I also agree with TES, but I have a different point of view. The abortion debate is about religious ideology. I get mad when the secularists try to impose their worldview in schools, TV, etc., and that should be illegal. But by the same token, we shouldn't impose our views about "personhood" and so forth. Our job is to persuade, just not in the legal sphere.

Just my two cents!