Balkinization: South Dakota Abortion Ban Rejected

South Dakota Abortion Ban Rejected

Among the many ballot measures before the voters last night was the fate of South Dakota's new abortion law, which would have banned abortions except where necessary to save the mother's life. The measure was rejected by the voters, USA Today reports.

The Legislature passed the law last winter in an attempt to prompt a court challenge aimed at getting the U.S. Supreme Court to overturn its 1973 Roe v. Wade decision that legalized abortion in the nation.
Instead of filing a lawsuit, however, opponents gathered petition signatures to place the measure on the general election ballot for a statewide vote.
The campaign turned quickly from the overall issue of abortion rights when opponents attacked the law as extreme, arguing that it goes too far because it would not allow abortions in cases of rape, incest or a threat to the life of a pregnant woman.
Supporters countered that the law would allow doctors to protect the lives of pregnant women with medical problems. They also argued that rape and incest victims would be protected by a provision that says nothing in the abortion ban would prevent women from getting emergency contraceptives up to the point a pregnancy could be determined.

One should not confuse the result in South Dakota with a full throated endorsement of either Roe or Casey. South Dakota is a very socially conservative state. Abortion rights are not popular there. It does suggest, though, that the strongest version of the pro-life position is in the minority even here.

Another interesting feature of the South Dakota law was that the legislative history behind the bill was premised not merely on the preservation of fetal life but also on the protection of women from abortions. A South Dakota Task Report (also available here) on which the law was based argued that women who consented to abortions suffered from what was, in effect, false consciousness. A woman by nature could not reasonably consent to the destruction of her child; if she did consent, she was either tricked or did not fully understand the nature of what she was doing. My colleague Reva Siegel (along with Sarah Blustain) explains the history of this measure in this American Prospect article.

Even though the South Dakota law went down to defeat, it signals an important shift in pro-life rhetoric, moving from arguments that the fetus is a person and abortion is murder to arguments that no women willingly choose abortion unless they are tricked into it or their will is overborne, and that abortion hurts women. This strategy tries to flip the idea of women's choice on its head: if abortion supporters argue that women have a right to choose to protect their interests, the new anti-abortion arguments counter that women's choice isn't free. As Siegel and Blustain explain:

Rejecting the finding of the American Psychological Association that abortion has "no lasting or significant health risks," the [South Dakota task] report argues that abortion inflicts grave psychological injuries on women, including bipolar disorder, depressive psychosis, neurotic depression, schizophrenia, guilt, anger, post-traumatic stress disorder, and suicidal ideation. The report finds that women who have abortions are more likely to have substance abuse problems, relationship and sexual problems, and parenting problems. Advocates describe these symptoms as a form of trauma they call post-abortion syndrome (PAS). Significantly, the task force argues that abortion causes PAS symptoms because abortion violates women's nature: "It is simply unrealistic to expect that a pregnant mother is capable of being involved in the termination of the life of her own child without risk of suffering significant psychological trauma and distress. To do so is beyond the normal, natural, and healthy capability of a woman whose natural instincts are to protect and nurture her child."
If women are not able to choose abortion, then someone must be making them choose it. And public enemy No. 1 in this campaign -- and in the task force report -- are abortion clinics, which push women into the procedure without providing them with information on the purported health risks or informing her that "the procedure would terminate the life of a human being." Indeed, the vision of women as victims, not agents, of choice is so stark that the report asserts that clinics lead unwitting women into acting contrary to their "very nature as a mother": "It is so far outside the normal conduct of a mother to implicate herself in the killing of her own child. Either the abortion provider must deceive the mother into thinking the unborn child does not yet exist, and thereby induce her consent without being informed, or the abortion provider must encourage her to defy her very nature as a mother to protect her child. Either way, this method of waiver denigrates her rights to reach a decision for herself."

In a much longer study of the South Dakota bill that will be published in Illinois Law Review as the annual Baum Lecture, Siegel points out that the new pro-life strategy is particularly important because it resurrects nineteenth century views about women's limited capacities to make choices. It also rests on the notion that it is women's inherent nature to bear children; women who try to avoid their nature are doomed to unhappiness and psychological and physical disease. This is a replay of the old "separate spheres" ideology of the nineteenth century that was used to justify not only restrictions on abortion but other civil and political rights for women. When an abortion ban like South Dakota's is justified on the grounds that it is against women's nature to want an abortion, Siegel argues, the law violates the Equal Protection Clause because it relies on stereotypical judgments about women. Although the Supreme Court has held that distinctions based on pregnancy are not per se sex discrimination, Siegel's point is that the rationale of the South Dakota law is unconstitutional not because it makes distinctions based on pregnancy but because it rests on paternalistic stereotypes about women's mental capacities for choice, agency, inherent nature, and true desires.

Posted 9:25 AM by JB [link]