South Dakota Abortion Ban {Day 7}

You show great initiative here, but I think you’re making too much of this. There’s no national conspiracy to suppress news about anti-abortion legislation. The South Dakota story just isn’t that significant. Similar bills have been submitted in other states, and these attempts have been going on for a long time. As you yourself note, the story was sent over the AP wire and ran in SD newspapers; other parts of the country simply regarded it as local news. I think you’ve underestimated the degree to which this kind of thing goes on at the state level all the time.

NARAL, which tracks abortion-related legislation at the state and federal levels, reports that in 2003 alone “anti-choice legislators in eight states introduced 13 measures with the goal of banning all or most abortions.” There were also 25 laws in 13 states which proposed complete bans on intact dilation and extraction (“partial-birth” abortion) with no regard for the health or safety of the woman, in defiance of long-standing rulings that such laws were unconstitutional. There were over 500 other bills proposed in the various states restricting abortion in one way or another. South Dakota’s attempted ban is just one of a number of similarly sweeping laws, and one of a vast number of anti-choice laws overall. Their chosen route – to stipulate answers to questions of fact and value by legislative process, as if they could vote the controversy out of existence – is, to say the least, intriguing, but otherwise it’s not news.

As for the actual content of the SD bill, it’s not really bold, visionary, groundbreaking, or some kind of watershed. Mostly, it’s just immensely stupid.

For one thing, it is riddled with conceptual problems:
- the common, obvious, and egregious equivocation on “human life,” used to mean both “a biological human” and “a full legal person” (with the attendant confused belief that the latter is a question of scientific fact rather than of human values);
- the sweeping extension of legal rights to fetuses, unimplanted embryos, and even fertilized eggs, in grand indifference to the entire history of jurisprudence;
- a naïve reading of Roe that imagines its famed “central holding” turns on the Justices’ supposed confusion over whether a fertilized egg is biologically human – it doesn’t – and that the Court would overrule itself if this were pointed out to them;
- and the idea that the meanings of established legal terminology or, what’s more, scientific facts themselves, can be dictated by legislative procedure.

Beyond this, both the bill’s content and its proponents’ strategy in promoting it betray such a mixture of mendacity and confusion that it is hard to tell whether its authors’ actions are intentional or merely clueless. Regarding its possible impact, by defining “human life” (i.e., legal personhood) as present at conception the bill outlaws not only all surgical and medical abortion, but also “morning after” contraception and, it would appear, IUDs and some forms of menstrual regulation. The provision that “[n]o person may use or employ any instrument or procedure with the intent of causing or abetting the termination of an unborn human life” would also appear to prohibit any forms of IVF (not to mention in vitro embryo research) that result in unused or discarded embryos. By stipulating that the only exception is the threat of death or actual impairment of “bodily functions” of the pregnant woman, the bill would appear to prohibit termination of pregnancy even in cases of birth defects incompatible with life – forcing women to carry anencephalic or hopelessly deformed fetuses to term simply because it wouldn’t kill them to do so. On the legislative-strategy front, the merits of the bill have been deliberately obscured by theatrical and factually dubious testimony intended only to dramatize the anti-choice position, not to actually discuss the impact of the proposed South Dakota law. Hearings have been packed with women –some from out of state - testifying, sobbingly, to their “post-abortion trauma,” claiming that abortion was worse than rape, that “they killed my baby and I want him back.” The last witness at the recent hearing was a 16-year-old teenager who had never had an abortion and did not know why anyone else would, but felt entitled to lecture the legislators that "[i]f you throw this bill out, you're saying that you condone murder. Life is given from God. A person is a person right from conception.” When opponents of the bill pointed out that it would undoubtedly be overturned in the federal courts, and that legal fees for defending its hopeless ideological posturing would cost the state as much as $1 million; the authors then added an amendment budgeting $1 million from the state treasury for legal defense of the bill.

The bill is simple political grandstanding; it’s hard to imagine its own authors take it seriously as a piece of legislation, except that the bill itself is evidence they’re just dumb enough to do so. Its “findings” of quasi-scientific fact are delusional, and irrelevant to the actual content of the Supreme Court decisions it is cleverly intended to undercut. Its legal grounding is wishful thinking. Its effects, if enforced, would rampage through the breadth of reproductive health law. The bill is so misconceived that it is hard to tell if its authors are reckless or merely incompetent. Luckily, it will almost certainly not be enforced, and even the anti-choicers on the high Court are unlikely to seize upon this confused, amateurish mess as their opportunity to revisit an historical case and the profoundly fraught question of legal personhood. The authors of SD HB1191 will only succeed in wasting $1 million of their citizens’ money on their own quixotic quest for some right-wing limelight. Sadly for their ambitions, they have the authors of 12 other bills, in 7 other states, to compete with.

All that being said, I do applaud – even if I don’t agree with – your work to publicize an issue you care about. This is the sort of thing that has brought blogging into its own, and you are doing an admirable job of pushing an agenda you think is important. I don’t think this bill is a horse worth riding, and I also think you’re wrong about how unique or significant it might be, and why it is not getting more attention. I think it’s being overlooked simply because it’s not that big a deal. But you are an example of what blogging can be at its best.