Reply to NY Times Editorial of March 12 "A Warning from South Dakota"
On Sunday, March 12, an Editorial (“A warning from South Dakota”) appeared in the New York Times purporting to assess some of the implications and merits of the recent South Dakota House Bill 1215 which bans most abortions in South Dakota (currently scheduled to take effect on July 1, 2006).
The editorial begins by assuming – quite incorrectly – that the South Dakota Statute was inspired by, or is a response to, the confirmation of Chief Justice Roberts and Justice Alito to the United States Supreme Court. Although, the Editorial Board tells us, that the answers of those two Court nominees to questions at their confirmation hearings about abortion, were “vague and too opaque,” the “state legislature in South Dakota felt it heard the underlying message loud and clear.” This statement is not only a shallow analysis of what has transpired in South Dakota, it has absolutely no basis in fact.
The South Dakota Ban Bill is the result of three years of hearings, careful and reflective analysis, debate, and, all along the way, compromise and balancing of many different interests of the women and children of South Dakota. That process began in the fall of 2003 when a House Representative, Matt McCaulley, (McCaulley was not a member of the House when the newly enacted Bill was passed in both houses of the legislature) generated discussion about the need to reexamine the effects of abortion on the rights, interests and health of women. In the first public hearing on a potential Ban Bill in February, 2004, the State Affairs Committee of the House heard breathtaking testimony from women who had had abortions. One after another, women told of their traumatic experiences. They told the legislators – in a room so enraptured by their testimony one could hear a pin drop – about their depression and suicide attempts following their abortions. One woman testified about how she conceived as a result of a violent rape and later submitted to an abortion at the urging of those around her. The abortion, she testified, was a kind of second rape and it was far worse than the first one.
The South Dakota Legislature, in February 2004, was moved by the tears and the pleas of these and many other women – who argued that abortion exploits women and destroys some of their most important rights and interests and adversely affects their health – to craft a Ban Bill designed to protect women from the harms of abortion. Matt McCaulley’s 2004 Bill, HB 1191, passed both the House and the Senate. There were no Court nominees or even a discussion of Court nominees. What inspired the legislature were courageous women who sacrificed their privacy at great personal expense to inform the legislature of just how abortion has harmed the lives of women.
When Governor Rounds issued a “Style and Form” veto in March 2004, the South Dakota Legislature fell one vote short in the Senate of making the Bill law.
But the 2004 debate in the South Dakota Legislature was far from over because it had little to do with politics and everything to do with protecting women from the destructive effects of abortion. Even out of session, legislators met and discussed the issue of how abortion has harmed women. In January and February, 2005, the legislature held further committee hearings and took further testimony from women who had abortions, and from those who counseled them after they experienced depression and suicide ideation following their abortions. The 2005 legislature (McCaulley was now gone) passed two important pieces of legislation designed to protect the rights of women. HB 1166 amended the State’s Informed Consent Statute because the evidence was overwhelming that most consents to abortion were either uninformed or not truly voluntary, or both. Among the concerns of the legislature was the need for special protection of the constitutional rights of a pregnant mother to her relationship with her child – a right Planned Parenthood devalued, ignored and terminated. HB 1166 expressly stated that it sought to protect this and other rights of the women against the negligence and misinformation of Planned Parenthood. That Bill was passed into law and was – predictably – challenged by Planned Parenthood because Planned Parenthood claimed that requiring their four out-of-state doctors to make the disclosure of important information to pregnant mothers violated the First Amendment free speech rights of the doctors.
But the South Dakota Legislature felt strongly that more information was needed to assess the experience women have had with abortion. As a result, the 2005 legislature created a Task Force to study abortion. That Task Force met throughout the summer and fall of 2005, took five full days of testimony, and received about 6,000 pages of written submissions, scientific papers and studies. Included in the record were 1,940 affidavits from women who testified that abortion ruined their lives. Only one woman who had an abortion came forward to say that abortion should remain legal.
The Task Force issued a seventy-one page report to the legislature and to the Governor in December 2005. The Task Force concluded that, as practiced in South Dakota, abortion is simply an unworkable method for a woman to give up her rights to her child.
When the legislature voted 50 - 18 in the House and 23 - 12 in the Senate last month to ban most abortions, it was in response to the pleas and testimony of women traumatized by abortion. It was these women who the legislature heard “loud and clear.” The Bill had little or nothing to do with the Supreme Court nominees whose names were not even known during the great debates in the South Dakota Legislature in 2004 and 2005.
Correcting the Times Editorial Board on this point, however, has a larger importance than merely correcting an obvious factual error. Rather, its importance is in relation to the assertion that whether South Dakota’s Ban Bill is, or is not, constitutional depends largely, if not entirely, upon the make-up of the Court. This cynical view insults, not just the people of South Dakota and their elected representatives; it insults the members of the Supreme Court, and assumes that newly discovered facts and applications of well established legal principles are irrelevant. It assumes that all that matters are predisposed philosophical views of the Justices. Such a view dismisses the credibility of both “liberal” and “conservative” members of the Court in equal measure. It hypothesizes that facts and law don’t matter.
It is now well known that a large majority of the Supreme Court has viewed Roe v. Wade as having been an incorrect application of constitutional law. When Roe was reaffirmed in Casey v. Planned Parenthood on June 22, 1992, six of the nine members of the Court had voted that day or on prior occasions to overturn Roe precisely because it was wrongfully decided. That day in June, 1992, only two Justices (including the author of Roe) were willing to expressly assert that Roe was correct. Thus, Roe survives not because of its merit, but survives despite the lack of it.
South Dakota has taken three years to carefully and thoughtfully examine the facts and the law and has acted out of a strong sense of conviction that there are facts and rights that the Supreme Court has never before considered. South Dakota simply believes that, in order to protect the rights, interests and health of women and the interests of their children, the Court and the nation should reexamine a decision the Court knows was wrongly decided. South Dakota, given the moving testimonies of women who have had abortions, has concluded that the Court needs to reexamine Roe in the context of those new facts and legal issues.
Planned Parenthood is in the process of losing its case in the HB 1166 litigation. The N.Y. Times ought to take a heads-up from Planned Parenthood. The Times and some commentators may be predicting an easy victory for Planned Parenthood in Court because they focus exclusively on the “make-up” of the Supreme Court. They ought to be examining the facts and legal analysis advanced by South Dakota in court and in the Task Force report. There is no better evidence that Planned Parenthood believes it can’t and won’t win in court (regardless of the make-up of the Court) than the fact it has decided to wage a referendum fight on the fall ballot in one of the reddest of red states, rather than to file a complaint in Federal Court.
Harold Cassidy is currently the attorney of record for the intervenors in Planned Parenthood v. Rounds, pending in the Federal District Court in South Dakota, Case # 05-4077, and the U.S. Court of Appeals, 8th Circuit, Case # 05-3093. He was selected as one of New Jersey’s top litigation attorneys by two magazines in 2005, and was honored as Person of the Week by ABC World News with Peter Jennings for his work in the area of rights of pregnant mothers.
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