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South Dakota's Impatience on Abortion

By Steve Chapman

For 33 years, opponents of abortion have followed the advice of St. Vincent de Paul, who said that if you must hurry, "hasten slowly." Ever since the Supreme Court made abortion on demand the law of the land, pro-lifers have worked tirelessly to move the court and the country toward allowing greater protection for the unborn.

But today, some people in the anti-abortion movement are running low on patience. They are hastening quickly, oblivious to the risks to those they want to protect.

Last week, South Dakota Gov. Michael Rounds signed a bill outlawing all abortions except those needed to save the life of the mother. Bills like this are rare, for the simple reason that, as things now stand, they are unconstitutional. The Supreme Court made that clear in the 1973 Roe v. Wade decision, and it has reiterated the point many times.

The arrival of John Roberts Jr. and Samuel Alito, however, has lifted hopes among long-suffering pro-lifers. Both justices expressed strong doubts about Roe as lawyers in the Reagan Justice Department, and during their confirmation hearings, neither promised to preserve it. So lawmakers in South Dakota decided the time is ripe to force the court to reconsider.

There are several problems with this approach. To start with, it raises the question whether the qualifications for office in South Dakota include the ability to count. Assuming that Alito and Roberts would jump at the chance to scrap Roe, that still leaves five of the nine justices in favor of preserving abortion rights. If the court were to hear this case tomorrow, the chance that the law would survive can be calculated with depressing precision: zero.

The law also runs the risk of demanding too much of the two new members. Both are conservatives, and both have stressed their due respect for precedent. There are steps a justice might be willing to take after a few years on the court that he might not be willing to take right away. One of those is chucking a major decision that has been on the books for a generation.

The bill's sponsor says he sees a "strong possibility" that John Paul Stevens will leave the court soon, to be succeeded by an anti-Roe justice. But that's not counting chickens before they're hatched -- it's counting them before the eggs are even laid. Stevens could still be on the court if and when this law comes before it. If he departs before then, though, Democrats will use every means available to make sure his replacement won't tamper with abortion rights.

Does the South Dakota strategy make sense? That's a good question to ask of Victor Rosenblum, a Northwestern University law professor who knows something about how to advance the pro-life cause: In 1980, he appeared before the Supreme Court arguing for the constitutionality of laws barring the use of government funds to pay for abortion -- and helped win the biggest pro-life court victory of the Roe era.

Rosenblum, who wants to see Roe overturned, regards the South Dakota measure as "an 'in-your-face' effort to make Roberts and Alito stand up and join our side." He has strong doubts about any approach "that smacks of trying to make the court look at the issue on our timetable." The unintended consequence may be to provoke the court to reaffirm abortion rights just when they seem newly vulnerable.

A more promising option is incrementalism: enacting regulations that modestly discourage or restrict abortion, giving the court the chance to retreat slowly and with dignity. It has already accepted 24-hour waiting periods, informed-consent mandates and parental-consent rules. The next step the court might plausibly take is to allow laws against "partial-birth" abortion -- something it might do in its next term, when it will consider a federal ban passed in 2003.

In light of recent history, what Rosenblum wrote in 1987 sounds even more plausible today: "It appears probable that repudiation of the abortion privacy right would come in a series of steps that would empty it of content, rather than from a law simply banning all abortions."

Gradualism is a frustrating approach to an issue that involves saving innocent human life from destruction, but it's better to achieve that purpose gradually than not at all. If you want to eat an elephant, the best way to do it is one bite at a time. It's too much to expect the Supreme Court to swallow the beast in one gulp.

Copyright 2006 Creators Syndicate

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