A Warning From South Dakota

New York Times Editorial
Published: March 12, 2006

When President Bush's Supreme Court nominees were asked about abortion and Roe v. Wade, their answers ranged from vague to opaque. But the state legislature in South Dakota felt it heard the underlying message loud and clear. Now, South Dakota has thrown down the gauntlet.

It adopted a law last week that makes every abortion that is not necessary to save the life of the mother a crime. The law is clearly unconstitutional under existing Supreme Court rulings. But its backers are hoping that the addition of John Roberts and Samuel Alito to the court will be enough to change things.

The law should be struck down because it imposes an unacceptable burden on women. But it should also serve as a warning that the threat to abortion rights has reached a new level.

South Dakota's abortion law is the most restrictive one adopted by any state since Roe v. Wade was decided in 1973. It does not contain exceptions for pregnancies that result from rape or from incest. Nor does it allow abortions that are necessary to preserve the health of the mother. The law is unlikely to go into force anytime soon. If it did, it would simply drive women — as in the pre-Roe days — to risk their lives to end their pregnancies with illegal back-alley abortions.

Gov. Mike Rounds, who signed the bill into law, said that the "true test of a civilization" was how it treated "the most vulnerable and helpless," including "unborn children." But his state has hardly been a leader in protecting vulnerable children who have left the womb. The nation's three worst counties for child poverty at the time of the last census were all in South Dakota, according to the Children's Defense Fund. Buffalo County, home to the Crow Creek Indian Reservation, was dead last.

South Dakota's law defies Supreme Court precedents, which hold that states cannot put an "undue burden" on abortion rights and cannot ban abortions necessary to preserve the mother's health. But anti-abortion forces seem eager to see how firm those precedents will be with Chief Justice Roberts and Justice Alito changing the balance.

The test seems premature, since even if both men voted to overturn Roe there would still only be four votes. Justice Anthony Kennedy, a moderate conservative, has sided with the court's four liberals on this point. But abortion opponents may be hoping he can be pressured to change. They have also begun predicting that Justice John Paul Stevens, the oldest member, will leave the court, allowing President Bush to appoint another anti-Roe justice.

Whatever the fate of the South Dakota law, it seems likely to jump-start a whole new era of abortion battles. More states may soon follow South Dakota's lead, and if the membership of the Supreme Court changes, abortion may become illegal in much or even all of the country. Roe ushered in three decades of complacency for the majority of Americans who support abortion rights. South Dakota's harsh new law is a clear sign that the time for complacency is over.