Susan Estrich
Wednesday, March 8, 2006

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On Monday, the governor of South Dakota signed a bill outlawing abortion except to save the life of the mother. The new law would make abortion illegal even in cases of rape or incest.

It would make abortion illegal even in cases where the mother's health is at risk, provided she is not likely to die. It would make abortion illegal where the fetus is certain to die soon after birth.

It would be flatly inconsistent with the most basic holding of Roe v. Wade.

There is no question that the law, scheduled to take effect on July 1, will be blocked by a federal district court. Then the state will appeal to a federal court of appeals. That court, bound by the precedent of the U.S. Supreme Court, will be required to uphold the decision of the district court.

The state, armed not only with its own budget derived from tax dollars, but a $1 million pledge from an anonymous private citizen, will then appeal to the United States Supreme Court, asking the Court to overrule Roe v. Wade. That is the whole point of the exercise.

There are, currently, five votes on record on the Court for the core holding of Roe, recognizing that - at least in some circumstances - a woman has a right to control her body and her destiny, and decide whether to carry a pregnancy to term. Those five are Justices Stevens, Souter, Kennedy, Ginsburg and Breyer.

So, even assuming President Bush's two newest appointees, notwithstanding claims of "open minds" and respect for precedent, side with Roe's known opponents, the current Court would strike down South Dakota's ban.

Abortion opponents know that. So what are they doing?

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The short answer is that they are counting on a justice - most likely my old boss, Justice Stevens, the Court's senior justice, to retire. Of course, they don't know him. The last time I saw him, he was as sharp as he was when I worked for him 27 years ago.

Another former clerk, who saw him even more recently, and worked for him even longer ago, told me the same thing. A case like this one is not likely to spur his retirement. More importantly, with such a case pending, the abortion issue would be framed in any future confirmation battle in a way that even the bumbling Democrats couldn't avoid making into a national issue.

Abortion opponents have overplayed their hand. They don't just have a loser in the courts, they also have a loser in the court of public opinion. For all the talk of shifting majorities, public opinion depends mostly on who is framing the question and how it's worded.

No one is FOR abortion, so word the question that way and you can get a majority against. But ask people whether they think victims of rape and incest should be forced by the government to bear a child, and I'll give you an overwhelming majority saying NO. Ditto for whether women who face serious health risks, including future infertility, should be forced to go to term, or whether women who are carrying babies with chromosomal defects inconsistent with life should be required to deliver children who cannot survive. Ask that question, and you'll get another overwhelming majority who says the decision should belong to the mother and not the government.

South Dakota has given the abortion rights movement an opportunity to stop apologizing and stand up for what is right, and what a majority believes in. For years, we've been stuck debating sometimes popular restrictions that make it sound like we're trying to make abortion into an easy answer for every pregnancy, as opposed to trying to save lives.

Probably the most popular restriction on abortion rights, parental consent laws, have proven to be an utter failure at their intended goal of reducing the number of abortions, according to the latest studies. Most parents, it seems, don't discourage abortion. The problem with parental consent statutes has never been that -- it's the small number of girls who are afraid, often with reason, of telling their parents, and who may be discouraged from getting safe and legal health care by the prospect of notification statutes. The studies don't tell us what happens to them, a point that now has to be emphasized.

South Dakota makes clear what should have been apparent all along. Abortion opponents are willing to sacrifice the health of the mother for the sake of their ideology. Women come last. Even rape and incest victims must become mothers. This fight isn't about making abortion easy. It's never easy. It's about making it impossible.

COPYRIGHT 2006 CREATORS SYNDICATE INC.

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