Is America Ready To Ban Abortion?

As frightening as it would be if upheld, could the South Dakota abortion ban be another case of right-wing politicians overstepping their bounds? While Americans are not in full agreement on access to abortion, a majority, when polled, consistently affirms its support for the general right to abortion. And, so, it turns out, do people in South Dakota.

Obviously, many people harbor deep ambivalence about abortion being the right choice in this or that circumstance. But perhaps, as with end-of-life decisions, this ambivalence doesn't automatically translate to support for government intrusion into beginning-of-life decisions. True, Americans do tend to support restrictions on abortion. But on the whole, Americans tend to think decisions about when to end or begin life are better left to a woman and her doctor.

I suspect that the prospect of the government passing a wholesale ban on abortion—a medical procedure, after all—runs counter to most Americans' sense of the proper role of government and individuals' right to privacy. Sure, they may personally disapprove of a woman's choice to terminate her pregnancy, but does that mean they support the government revoking that choice entirely? So, if  this measure gets reviewed by the Supreme Court—as is the intent—and an outright reversal of Roe looms, is it possible that the public will reject the move by the South Dakota legislature as extreme, in the same way it rejected Congress interfering in the Terri Schiavo case? The cause of legal abortion would be helped, no doubt, if there were a human face to drive home the consequences of a total abortion ban—a teenager abused by her father, a woman without resources to raise a child, etc.—as there was in the Schiavo case.

Yet, there's plenty of reason to think that the public will balk at the South Dakota bill as too radical. Even supporters of the ban worry it will backfire. An article in Sunday's New York Times , examined the debate among anti-choice groups about the wisdom of pushing such an extreme measure:

Which side of the abortion battle will benefit? Activists on both sides claim they have the advantage, but they can't both be right.

The South Dakota strategy itself has already splintered the anti-abortion movement. One faction is chafing at the timing of this campaign, wondering aloud whether the court—and, perhaps more important, the American public—will really embrace a complete reversal of Roe just yet.

Some, like Daniel McConchie of Americans United for Life, which did not take part in the South Dakota effort, said they would have preferred to reduce abortions by continuing to press for restrictions like waiting periods, parental and spousal notification laws, and the prohibition of certain types of abortion— quieter measures that draw less attention and strike a less head-on blow to Roe.

"There is tension," Mr. McConchie said, between those who agree with him about abortion but not about strategy. "A lot of those people—what we tend to think of as the purists—in essence think that people who would push a more incremental approach are sellouts. I understand that type of zeal, but there is a severe penalty you can end up paying."

I think the country is not ready for the South Dakota zealots. I sure hope I'm right. Don't think I don't fully appreciate how scary the alternative scenario would be for women's freedom. Already, bloggers are posting information on how to set up illegal abortion clinics . 

But I still hold out hope that the Supreme Court upholding the South Dakota ban would violate public sentiment. And, there's some basis for thinking even the Scalito Court wouldn't go that far. Despite the Supreme Court's move to review the so-called partial birth abortion ban, which seems to confirm our worst fears about Roberts and Alito, many observers think the South Dakota measure is too radical even for George W. Bush's justices. Talking to NPR recently, John Green, a political scientist at the University of Akron, explained:<!--StartFragment -->

"Based on the records of Judge Roberts and Justice Alito, it looks very unlikely that they would institute sweeping changes in abortion law or, in fact, in any other area, because these are strict constructionists, very careful judges that believe in incremental change, whatever their personal philosophy might be," Green said.

There's another aspect of the South Dakota law that makes it potentially significant: It defines human life as beginning at the fertilization of egg and sperm. "Most of the debate so far has been about what is legal, whereas most of the debate has not been about defining when life begins or what life exactly is. And that could have broader ramifications in other areas of the law as well," Green said, including areas such as assisted suicide, the use of embryonic stem cells, or even other areas of medical research.

And he says there's one more risk for abortion opponents in trying to ban the procedure outright. Every time the core right to abortion appears to be in jeopardy, public opinion has tended to swing the other way— towards abortion rights.

So, I'm not saying we shouldn't marshall all our forces to fight this retrograde policy. And I'm not saying we shouldn't plan for a post-Roe world where the fight to protect reproductive rights will be fought state by state. But I am saying that overturning the South Dakota ban might well be a fight where we have a majority of Americans on our side.

Views expressed on this page are those of the authors and not necessarily those of Campaign for America's Future or Institute for America's Future