Joseph Bottum: South Dakota Anti-Abortion Legislation a "Tactical Error"

Joseph Bottum, writing for the First Things blog On the Square, thinks that the South Dakota legislature made a "tactical error" in pushing for a showdown on Roe v. Wade at this juncture:

Back in my home state of South Dakota, the state legislature voted on Friday to ban all abortions except those to prevent the death of the mother. The governor, Mike Rounds, hasn’t yet signed the bill, but said he was leaning toward doing so—though two years ago, he vetoed similar legislation on the grounds that it was badly written and would have caused all of the state’s old restrictions to be enjoined while the ban was being tested in court.

From Pierre, South Dakota, to Washington, D.C., is hardly a straight line, but the point of the effort is to give the Supreme Court an opportunity to overturn Roe v. Wade and its progeny. “Many people will never believe this will not work unless it’s tried,” Rounds told a news conference, and the bill’s supporters were demanding the “opportunity to be proven wrong.”

It looks like they’ll get it. But is the effect likely to be good or bad? The usual pro-abortion groups are already booming the legislation—which is years from facing Supreme Court review—for fund-raising purposes, which certainly looks like a first bad effect.

And then there’s the question of the Supreme Court’s review of the Federal ban on partial-birth abortion. With the appointments of Roberts and Alito, there are, we hope, four solid votes against Roe on the Court. If Justice Kennedy was serious in previous opinions when he said that legislation could treat third-trimester abortions, then there may be the five-vote majority needed to assert that the right to abortion does not trump every other consideration—and that abortion is therefore, in principle, subject to restriction and regulation. With that crack in the rock that rolled over us in 1973, there is a chance to start breaking off more pieces—or so the argument goes—until Roe is finally reduced to rubble. But if the pro-abortion groups and their supporters in the press can successfully equate the Court’s review of partial-birth with an outright and immediate ban of all abortions, the crack gets harder to open. And that, too, looks like a bad effect of the new legislation in South Dakota.

But there’s hunger out there—in the real world, in places like Pierre, South Dakota—for something to happen. President Bush forgot during the brief Harriet Myers imbroglio that the Supreme Court was the election issue for a large number of people who voted for him in 2004. And now with Roberts and Alito on the Court, those people want to see results. The base is worked up, the pro-abortion Democrats looked feeble and stupid during Alito’s confirmation hearings, and for the first time since the Webster decision in 1989, the end of Roe is actually imaginable. Not certain, you understand, and maybe not even likely. But that it should be even imaginable is huge change: For the first time in many people’s adult life, we can picture a genuine path for returning abortion law to the states.

So it’s not really surprising that the national pro-life groups can’t keep tight control of the movement. Down at the roots, the grass is on fire. After all the careful work writers in journals like FIRST THINGS have done to set in motion the analysis by which Roe can be chipped away, it’s hard to see the South Dakota legislation as anything except a tactical error. But it’s also hard to blame the lawmakers who pushed it through. As the governor said, “Many people will never believe this will not work unless it’s tried.” And the hunger for something to happen—oh, yes, anyone who is opposed to abortion knows that feeling well.

My Comments:
You may recall that I expressed similar concerns about the South Dakota abortion legislation here, when I asked whether pro-lifers know how to count. For a well-reasoned but contrary view of the South Dakota legislation (as well as my comments thereto), see Father Martin Fox's excellent blog Bonfire of the Vanities.