NRLC Role in Defeat of South Dakota Legislative Effort to Ban Abortion and Challenge Roe v. Wade

Report Regarding NRLC Role in Defeat of South Dakota Legislative Effort to Ban Abortion and Challenge Roe v. Wade Wed, Mar 31, 2004

RE: REPORT REGARDING THE NATIONAL RIGHT TO LIFE COMMITTEE’S ROLE IN THE DEFEAT OF SOUTH DAKOTA’S LEGISLATIVE EFFORT TO BAN ABORTION AND CHALLENGE ROE V. WADE

Over the past week, the Thomas More Law Center has received numerous inquires questioning National Right to Life Committee’s (NRLC) role in the defeat of South Dakota’s House Bill 1191 (HB1191), designed to ban abortions, and described by major pro-abortion groups as “… the most sweeping anti-abortion state law enacted in our nation since before Roe v. Wade.” These calls of inquiry have related to a public statement from the Thomas More Law Center designed to inform the public about NRLC’s actions with respect to HB 1191.

All should know that HB 1191 caused a national alarm among pro-abortion groups. According to the March 2nd issue of the Argus Leader, Sondra Goldschein of the ACLU’s Reproductive Freedom Project, speaking from her New York office, said that many states have attempted to limit abortion but none in the fashion of South Dakota: “I think we are just shocked by what the State Legislature is doing,” she says. “It’s the most extreme example I can think of, and it’s a real example.”

HB 1191 had the support of the Catholic Bishop whose Diocese covers the state capitol. It had the endorsement of nationally renowned pro-life constitutional scholars, Notre Dame law professors Charles Rice and Gerard Bradley. And it had the support of rank and file pro-lifers, many of whom braved a South Dakota snowstorm to demonstrate for the bill during the legislative sessions.

On March 22, 2004, we issued a public statement regarding HB 1191 because we believe that pro-life Americans are entitled to know that NRLC’s lobbying efforts aligned with those of Planned Parenthood and other pro-abortion groups, and resulted in the defeat of this anti-abortion legislation. In our view, such conduct raises important questions about NRLC’s claim to represent the interests of the unborn.

In response to our public statement, NRLC issued a two-page form letter, which confirmed NRLC’s opposition to HB 1191 and defended its decision to oppose this legislative effort to outlaw abortions and directly challenge Roe v. Wade. It is necessary to provide this additional and more detailed statement because NRLC’s letter misstates the facts of this important matter.

In its response, NRLC admits to speaking with one state senator whom they do not name. The unnamed state senator is Jay Duenwald, a board member of the NRLC Educational Trust Fund, and the leading opponent of the abortion ban legislation (HB 1191). Senator Duenwald actively lobbied pro-life legislators on behalf of NRLC and South Dakota Right to Life (SDRTL) to oppose the bill.

From the very beginning of this process, Senator Duenwald argued that HB1191 should be rejected because it was untimely. Senator Duenwald was quoted by Bob Mercer, reporter for the State Capitol Bureau as saying “It would be a good bill if the timing was right. The timing is just flat wrong.” Likewise, The Los Angeles Times, February 29, 2004 article, describing HB 1191 as the nation’s most far-reaching ban on abortions reported “….[The] National Right to Life Committee, a leading anti-abortion group says it’s too soon to attempt an all-out abortion ban.”

It has been 31 years and over 40,000,000 unborn babies killed, and NRLC says it is not the right time to directly challenge Roe v. Wade.

The Thomas More Law Center believes that this assertion concerning “untimeliness” is speculative and shortsighted. Nobody, including NRLC, can predict how the Court may rule, or who may be on the Court in the future. Indeed, a legal challenge in South Dakota would probably have taken several years to reach the highest court. Given the fact that changes in the make-up of the Supreme Court are widely anticipated, South Dakota’s timing might have been perfect. In contrast, the “wait and see” approach with regard to the make-up of the Supreme Court is simply unreasonable. What if changes in the Court are for the worse? What if a certain pro-life majority on the Supreme Court does not come about for another 31 years? Can we afford to wait?

NRLC’s claim that HB 1191 was untimely is fatuous for another reason: South Dakota’s effort was unique both in form and substance. The proposed legislation would have presented the Court with several very significant findings. These findings included the considerable advances in medical science which definitively establish that life begins at conception. In addition, the case would have presented the Court with unprecedented evidence concerning the harm to women caused by abortion, a stated basis for banning abortion that was supported by studies and world-class experts who had agreed to testify in support of the legislation. The extensive basis for the legislative findings may well have convinced some of the Justices that the ban on abortion was justified given the record of harm to women and children that has followed from its decision in Roe v. Wade. Thus, it is highly presumptuous for NRLC to conclude that the case was destined to lose.

More fundamentally, TMLC disagrees with NRLC’s defeatism with regard to the Supreme Court. We believe that efforts to challenge the Roe v. Wade decision should not be dismissed simply because some pro-life strategists believe the Court is not ready. The challenge to Roe posed by South Dakota HB 1191 would have forced the Court to again confront its lawless decision. The case would have thrust the abortion issue into the national spotlight, and would have created the public pressure and political momentum that any successful repeal of Roe will require.

Here it is instructive to consider the tactics of the homosexual interest groups. Recently, many homosexual activists argued that it was a mistake to bring a constitutional challenge to Texas laws barring homosexual sodomy because it was unlikely that the Supreme Court would reverse its decision in Bowers v. Hardwick, a 1986 decision which held that there was no constitutional right to homosexual sodomy. But we all know what happened in that case. Just last year, in Lawrence v. Texas, the Supreme Court struck down the Texas law, overruling a decision it rendered just 17 years ago. Now homosexual activists are using that decision to press for homosexual marriage.

The lesson here is simple. Nobody can know with any real certainty the ideal time to challenge any given decision. Under those circumstances, NRLC should demonstrate humility and respect for the efforts of those who differ with their judgment concerning the right time to ban abortion and challenge the Roe v. Wade decision. In the spirit of unity, it should not take it upon itself to publicly oppose any effort it regards as untimely.

In another great human rights struggle Martin Luther King Jr. had to contend with the same argument opposing his direct action in Birmingham, Alabama. In his famous Letter from a Birmingham Jail, here’s how he responded to the “wait” argument:

“Frankly, I have yet to engage in a direct-action campaign that was ‘well timed’ in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word ‘Wait!’ It rings in the ear of every Negro with piercing familiarity. This ‘Wait’ has always meant “Never.” We must come to see, with one of our distinguished jurists, that, “justice too long delayed is justice denied.”

And so what would be the response of the unborn child awaiting the fate of abortion to NRLC’s “Wait” argument?

Finally, it should be noted that NRLC’s effort to justify its opposition to HB 1191 based on “untimeliness” is inconsistent with its stance on the Partial-Birth Abortion Ban. NRLC supports the PBA ban, reasoning that it serves as a way to educate the country regarding the inhumanity of this method of abortion. But in Stenberg v. Carhart, decided in 2000, the Court rejected the first effort to ban this procedure. The prohibition of partial birth abortions does not save one baby from abortion, but merely prevents doctors from using a particular abortion technique. Nevertheless, the Thomas More Law Center supports the PBA ban, and will defend it in court because it is the right thing to do regardless of the ultimate legal outcome.

Surely litigation concerning HB 1191 would likewise draw public attention to the continued evil of abortion, including the harm caused to women. Why does NRLC think such efforts would not have raised public awareness of the evils of abortion, including the harm to women caused by this terrible act? More importantly, why was NRLC unwilling to give HB 1191 the benefit of its doubts considering that it would certainly have stopped abortions in South Dakota unless and until ruled unconstitutional? NRLC needs to answer this question; it has not.

NRLC and Senator Duenwald have also seized on an exception added to HB 1191 during the legislative process as another reason for their opposition to the bill. The National Catholic Register has reported Senator Duenwald’s claim that “the bill’s health exception is too subjective and provides too great a loophole.” Darla St. Martin, NRLC’s Associate Executive Director, made this same claim.

Such claims are disingenuous for two reasons. First, it was NRLC’s opposition to HB 1191 that caused a health exception to be added to the bill. Second, the health exception added to HB 1191 was narrow and meaningful.

This is how the health exception came to be included in HB 1191. On February 5, 2004, the SD House State Affairs Committee held a hearing on HB1191 for nearly 5 hours, eventually passing by a vote of 11-2, a sweeping ban on abortion with NO exceptions. In the days leading up to this hearing, South Dakota Senator Jay Duenwald, who serves on the Board of the NRLC Educational Trust Fund, was widely quoted opposing the legislation. The bill was then sent to the full House for a vote.

On February 10, 2004, the South Dakota House of Representatives held an emotional floor debate on HB 1191, voting down several efforts to amend the legislation with rape, incest, and various health exceptions, and eventually passed the “no exceptions” legislation 54-14. The bill left the House of Representatives with great momentum and was sent to a Senate committee for review. House bill sponsor Matt McCaulley confirmed that securing approval from the Senate would be more difficult, however he believed that enough votes were solidly committed to passing the legislation.

The Senate State Affairs Committee took up the abortion ban on February 21st. For several days prior to this hearing, Senator Jay Duenwald, using his reputation as a leading pro-life legislator and his high profile position with the National Right to Life Committee, actively lobbied fellow Senators to gut the legislation arguing again and again that the time was not right to pass such a law.

Duenwald’s efforts proved successful as Senate Committee members voted 5-4 to fundamentally alter the legislation. The result was a wholly new bill that did not prohibit any abortions, but simply required abortion doctors to properly inform women of the risks and options associated with the abortion procedure.

The new bill was attributed to Senator Duenwald, who actively lobbied and endorsed the replacement bill. On February 22, 2004, The Aberdeen News reported on Duenwald’s efforts to gut the abortion ban:

“An unusual coalition of five committee members came together to use that language to replace the proposed ban on abortion. They included at least two pro-choice senators and at least two-pro-life senators who think it’s the wrong time because of the court’s current membership.”

The Argus Leader published a report dated February 23, 2004 addressing the Senate State Affairs Committee removal of the sections that outlawed abortions in South Dakota. The paper reported: “Sen. Jay Duenwald, R-Hoven, was instrumental in drafting the new language.” And Rapid City Journal reported that Rep. Larry Rhoden, R-Union Center, said “I’m extremely disappointed that somebody representing South Dakota Right to Life has taken a step this drastic to knock the wheels off HB 1191”.

Even so, the full Senate decided to abandon Duenwald’s newly crafted “compromise” legislation, and instead reinstated the original comprehensive ban on abortion. During the floor debate to reinstate the “no exceptions” version of the bill, NRLC’s representative once again spoke out against the legislation as ill timed, and joined pro-abortion Senators in voting against it. It was only then that the “substantial and irreversible bodily harm” exception was added, i.e. after the “no exceptions” position lost momentum due to NRLC’s opposition.

Two critically important points must be noted here. First, this exception was added after NRLC officials publicly opposed a “no exceptions” version of the bill. NRLC officials including its local representative, Senator Jay Duenwald, were quoted heavily in the press opposing the legislation, and lobbied the Senate State Affairs Committee members to toss out the “no exceptions” version passed by the South Dakota House of Representatives in favor of an informed consent measure. As Senator Lee Schoenbeck, the Senate sponsor of the legislation put it, the health exception was the result of "the divided efforts of the pro-life community.”

Second, and more fundamentally, the “health exception” actually included in the bill is not broad, vague, or subjective. Quite the contrary, the final version of the bill included a narrowly defined exception in the case of “any medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible physical impairment of the pregnant woman.” Further, the bill continued to require that doctors “make reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of her unborn child.”

NRLC’s claim that this exception leaves everything to the subjective judgment of the abortionists, and Duenwald’s claim that “the bill’s health exception is too subjective and provides too great a loophole,” are untenable. The plain language of the exception calls for a medical diagnosis. That diagnoses must be based on appropriate medical tests and reported in the medical records. According to South Dakota law, falsifying a medical record regarding any phase of the medical treatment of a patient is unprofessional conduct that not only jeopardizes the doctor’s medical license, but also subjects him to possible criminal prosecution. Moreover, the hospital’s license may be revoked if it permits or aids and abets in the commission of an unlawful act, and abortion would have been unlawful if HB 1191 had been allowed to pass.

Further, NRLC’s argument proves too much. If the test of the effectiveness of any law criminalizing abortion is whether someone could lie to escape its provisions, then abortionists could avoid the proscriptions of virtually any ban on abortions by merely claiming that the death of the unborn child was caused by a spontaneous miscarriage. The fact remains that if a doctor is charged with violating this law, a trial will ensue in which evidence will be presented, including expert medical evidence regarding his medical diagnosis and procedures. It would be no different if a doctor were charged with murdering his patient by use of some other medical procedure.

The truth of the matter is this. NRLC publicly opposed a “no-exceptions” version of the bill, and it was NRLC’s opposition to the bill that made it necessary to add the health exception. While the addition of the exception was an outcome of the legislative process, the exception was narrow and drastically reduced the ability of abortionists to provide abortions based on the health of the mother. It was not a broad and subjective “health exception” such as NRLC implies and, therefore, did not justify abandoning a bill that still would have outlawed the vast majority of abortions and challenged Roe v. Wade. NRLC’s effort to justify its opposition to HB 1191 on this basis is untenable.

NRLC also attempts to justify its opposition by arguing that if the legislation were ruled unconstitutional, legal fees would be paid to pro-abortion groups that challenge the law. This argument should give pause to all sincere pro-life Americans for two related reasons. Since when has NRLC cared more about money than unborn babies? And who made NRLC guardian of South Dakota’s tax dollars?

It is true that a successful challenge would result in the payment of legal fees. However, these fees would have been limited to reimbursing the successful challenger for their attorney’s fees. Thus, the recipient would have been a private law firm retained by Planned Parenthood or similar challenger. No award of fees would have gone to Planned Parenthood’s abortion business or resulted in more abortions.

Furthermore, the cost of a legal challenge was not lost on the South Dakota legislature. Much of the debate on the bill involved the question of whether South Dakota taxpayers were willing to fund a challenge to Roe v. Wade. South Dakota legislators, representing the wishes of their constituents, took the bold step of deciding that the challenge was worth the cost. It is the height of arrogance for NRLC to criticize the citizens of South Dakota for choosing to spend their dollars on a challenge to Roe v. Wade. Again one must ask: who made NRLC the guardian of South Dakota’s state finances?

In short, NRLC’s concern for the pennies per person that might have been lost as a result of this effort to save unborn babies rings hollow. We respectfully suggest that one of two things is true; either this is a mere makeweight argument, or NRLC is not the organization it claims to be. Each pro-life American will have to answer that question.

NRLC also attempts to justify its opposition to HB 1191 on the grounds that the legislation would inevitably be overturned and that this would prove a setback to the movement. The concern that challenging Roe might further entrench its holding raises a related question: how much more entrenched can abortion become? Here again, this argument does not jibe with NRLC’s support for the partial birth abortion acts. NRLC has supported such legislation. But the U.S. Supreme Court’s decision in Stenberg v. Carhart, striking down Nebraska’s partial birth abortion act, has arguably done more to entrench the holding of Roe v. Wade than any other case. Nevertheless defending Nebraska’s ban at the highest court was the right thing to do. For the same reasons, NRLC should have supported HB 1191.

In conclusion we wish to emphasize that we have issued this report concerning the activities of NRLC and SDRTL with respect to HB 1191 out of respect for the sincere convictions and goodwill of pro-life Americans. The events recounted in this letter can be substantiated by press accounts and the testimony of those who participated in the legislative process. For our part, we believe that pro-life Americans are entitled to know that NRLC aligned itself with Planned Parenthood and other pro-abortion groups to lobby against HB 1191, and that their combined opposition resulted in the defeat of this anti-abortion legislation.

Such conduct raises important questions about NRLC’s claim to represent the interests of the unborn, and its right to receive support and allegiance from those who want to serve the pro-life cause. Each pro-life American will have to answer those questions.

Folks,

I am stunned by the actions of the National Right to Life Committee and South Dakota State Senator Jay Duenwald. These seem to be the actions of people who want to appear to be pro-life, and want it to appear that they are trying to end abortion, when in fact they only want to pass legislation destined to fail. Legislation that, while LOOKING pro-life, in reality, perpetuates the murder of our unborn in its failure. Too many legislators at the state and national level have given lip service to this problem while doing NOTHING that would actually end this travesty.

It's a lot like the President, for political expediency, proposing immunity for illegal aliens, all the time knowing that Congress could NEVER pass such a measure. In saying this I am not opposing our President. I am opposing that one misguided policy proposal.

I have said far less than I am inclined to say, but I have always been a pro-life 100 percenter. I bought the lie of exceptions when it looked like it might prevent MOST of the abortions, but I always had in the back of my mind that it would just be the first step in completely ending abortion. I am ashamed now that I bought that lie. I believe now that the ONLY way to end abortions in this country is through the premise that, abortion can end tomorrow if legislators are committed to a plan that means nothing less than complete protection for every pre-born child. Nothing less has worked. Nothing less will work. We've tried all of "their" ways. They don't work. This is all out war.

The above reply to the NRLC is a long read. READ IT! It is time for a fundamental change in the right to life movement. The NRLC has dealt us a devastating blow and shown themselves to be PRO-ABORTION! It's just a matter of degree.

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Dont attribute to malice what is better attributable to incompetence.

In other words, NRLC screwed up by opposing this, but out of misguided concerns. I too am stunned they erred by actually opposing this - that is the exact opposite of what they stand for. It's a valid question as to whether a broad or a more narrow law would be the vehicle to overturn Roe v Wade. IMHO, the provisions are of less consequence until the day you have 5 justices saying that states can write laws to protect preborn human life.

The big mistake is to argue about the approach and in the end do nothing.

"Dont attribute to malice what is better attributable to incompetence."

My friend, this was not incompetence. It was a malicious attack by one supposed pro-life group against another. It was a vicious attack against the most pro-life legislation ever to be proposed by the supposed leading pro-life organization in the country. They were entirely too competent and intent on seeing this good legislation defeated at the expense of the pro-life movement as a whole.

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