Right to Life Leader Helps Pro-Abortion Folks Defeat Bill to Criminalize Abortion (Our Sad Times)

ANN ARBOR, MI —Shock waves are still reverberating one week after South Dakota’s bill criminalizing abortion was defeated by a single vote over National Right To Life’s complicity with pro-abortion groups to kill the legislation that pro-abortion lobbyists called the most restrictive anti-abortion measure since the Roe v. Wade decision in 1973. The Bill was sponsored by Republican State Representative Matt McCaulley who had asked the Thomas More Law Center to help draft a bill that would directly confront the holding of the Roe decision. As a result, House Bill 1191 banned virtually all abortions in that state and made it a felony punishable for up to 15-years.

Immediately after the Bill was announced, National Right To Life spokespersons and officers of their state affiliate opposed passage of the Bill as not being the right time.

Richard Thompson, President and Chief Counsel of the Law Center accused National Right to Life of betrayal, “It is one thing for National Right to Life to disagree with the timing of a bill banning abortions, it is another thing for them to join forces with pro-abortionists to kill the ban – it is a betrayal of the unborn and pro-life movement. When is it the wrong time to do what is right? This organization has lost the moral authority to lead the pro- life cause.”

The bill passed the state House by an overwhelming majority, 54 to 14. State Senator Jay Duenwald, an officer in both the state and National Right To Life organizations, led behind the scenes opposition when the bill reached the State Affairs Committee. Together with pro-abortion Senators, Duenwald’s lobbying efforts succeeded in removing the ban and replacing it with an informed consent measure, something already covered by South Dakota law. However, the ban was reinserted on the Senate floor through a compromise measure that created an exception for the life of the mother and if there was a serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.

Still the doctor was commanded to use reasonable medical efforts to preserve both the life of the mother and the life of the unborn child.

When the bill arrived on Governor's desk, he sent it back with a "style and form" veto suggesting some technical changes which had to be approved by both houses of the legislature for the bill to become law. Although the House again overwhelmingly passed the bill, Senator Duenwald had a second chance to defeat it. This time, with the help of National Right to Life he succeeded. The bill was defeated by an 18 to 17 vote.

South Dakota Representative McCaulley, observed, “There is something horribly wrong when South Dakota Right to Life and Planned Parenthood are on the same side of an issue."

Leslee Unruh, a member of Right to Life for 25 years, and Director of the South Dakota Alpha Health Center, an abortion counseling service, whose husband helped start local Right to Life chapters throughout the state, expressed shock as well. “We were shocked, saddened and dismayed that National Right to Life lobbied against this bill. In effect, they aborted the right to life bill.”

After 31 years and over 40 million babies killed, the case of Roe v. Wade making abortion a constitutional right is still the law. Yet, it took homosexual activists only 17 years to overturn the Supreme Court decision that allowed states to criminalize homosexual sodomy. Still, according to National Right To Life - the time is not right.

National Right To Life’s criticism of the timing of the bill is similar to the attack on Martin Luther King’s actions in Alabama. His famous Letter from Birmingham jail answered his fellow clergy:

“Frankly, I have yet to engage in a direct-action campaign that was ‘well timed’ in 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.”

Concluded Thompson, “One thing we know for sure, Planned Parenthood and NARAL could not be happier with National Right To Life.”

I found some comments about this at a blog by doing a search. All the following comments are from the blog:

South Dakota's legislature is considering "a bill making abortion a crime unless it is necessary to save the life of the mother." (Link via Evangelical Outpost).

Pro-lifers are by no means united in support of this bill (here's the text of the bill, by the way). Some worry that the bill would cost South Dakota taxpayers a lot of money to defend in court, but will ultimately be found unconstitutional and thus not actually prevent any abortions. Others seem to believe that the bill takes advantage of a loophole in Roe v. Wade. From Christus Vector:

The first paradox is that the bill is not only constitutional under a proper interpretation of the Fourteenth amendment, it may very well be compatible with Roe v. Wade. This is because the bill contains explicit findings that human life begins at conception, and that the state therefore has a compelling interest in the protection of that life. This is important because the court in Roe declined to decide when life begins, saying instead that since it wasn't clear that life did begin at conception that possibility couldn't override a women's right to have an abortion. This, combined with the deference generally given to legislative findings of fact, means that it should be possible for a state to provide the missing basis for what the court in Roe admitted would be a compelling governmental interest in prohibiting abortion.
As I pointed out in Christus Vector's comments, I don't think the legal argument has much merit. There are two questions to be considered: First, is the Supreme Court obliged to defer to legislative fact-finding, and second, what does Roe really say.

Regarding deference, the conservatives on the Supreme Court have made it clear that they don't consider themselves bound by congressional fact-finding. See, for instance, their decision overturning parts of the Violence Against Women Act (VAWA), on the grounds that VAWA had no relationship to interstate commerce, despite extensive congressional fact-finding which found just the opposite.

As Clarence Thomas once wrote (pdf file):

We know of no support... for the proposition that if the constitutionality of a statute depends in part on the existence of certain facts, a court may not review a legislature's judgment that the facts exist. If a legislature could make a statute constitutional simply by 'finding' that black is white or freedom, slavery, judicial review would be an elaborate farce. At least since Marbury v. Madison (1803), that has not been the law.
As for the supposed loophole in Roe, to me it seems like wishful thinking on the part of some pro-lifers. Here's the relevant passage from the Roe v. Wade decision:

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.
It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question.[....]

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.

It seems clear that the logic of Roe is not threatened by South Dakota's bill declaring that life begins at conception - just cross out "Texas" and write in "South Dakota," and the problem is solved.

Posted by ampersand at February 6, 2004 04:20 PM | TrackBack

If anyone bothered to go to the South Dakota Right to Life website they would find that they opposed the bill not just because of timing but also because of the "health" loop hole which leaves the decision to perform the an abortion up to the abortionist. (Note: this is a "health" exception not a "life of the mother" exception which the NRLC supports)

The following except is from their website and explains what would happen if the court upheld the law (which they wouldn't because 6 of the 9 justices are pro Roe v. Wade)

3. Challenged in district court. We lose and appeal to circuit court.
We lose and appeal to Supreme Court and Cert. is accepted.
We argue in court and win.

Results: We have just enacted the most liberal abortion law for SD in the history of the state. The health exception in 1191 allows abortion at any time from conception to birth. All discretion is left to the abortionist, including partial birth abortion. It is solely his decision.

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