Feasibility of SD's abortion ban

Most people believe South Dakota's abortion ban has no chance of surviving the onslaught of legal challenges that will begin before the governor's ink dries, but depending on how the Supreme Court views the Constitution that may not be the case.

Surprisingly it may not revolve as much around the interpretation of the 1st Amendment as it does around the interpretation of the 10th Amendment, possibly in conjuction with the 14th.

The 10th Amendment is the basis for the "state's rights" argument made by many originalists and conservatives. It grants all powers to the state and the people not specifically delegated to the federal government. This last amendment of the Bill of Rights is probably the most ignored by current courts and the federal government.

The 14th Amendment somewhat limits this power, by not allowing the states to superceed the federal governments ban on slavery or other such issues. Abortion rights supporters would argue that this is where the case for abortion is to be made, but here's the problem - the Constitution specifically outlaws slavery, it never mentions abortion.

Even many who are in favor of abortion rights, acknowledge that Roe v. Wade was a horribly adjudicated case. It uses the right to privacy that is never specifically mentioned to form a right to an abortion that was invented out of thin air.

But regardless of that decision, the Supreme Court would only have to find that in accordance with the 10th Amendment, they have no authority to overturn this state law - seeing how it does not violate any Constitutional rights.

The reason we get in too huge national debates over issues such as abortion and gay marriage is the overbearing power of the federal government. If controversial, nonconstitutional issues were left to each state to decide then individuals could choose to live in an area that better reflected their values.

If California wanted to have gay marriage and abortion providers on every corner, go ahead. If Michigan wants to have civil unions and abortion only under certain circumstances, go ahead. If Texas wants to have only man and woman marriages and no abortions, go ahead.

The beauty of this arrangement, the beauty of the Founder's intent, is that it allows more power for individual people to cause their government to reflect them. My local representative and senators are far more likely to listen to me and my opinion than my federal representative and senators.

It avoids huge, ugly national debates on controversial issues and allows state governments, much closer to the people, to decide what laws best suit their citizens.

Honestly, I think abortion should be outlawed because I view it as murder, but that does not mean that I do not recognize it as more complicated for others. This solution, designed by the Founders, allows for differences between states regarding issues that are not clear cut for many people.

I hope the Supreme Court, which is where the SD abortion law will end up, will have the courage and wisdom to remember that the Framers of our Constitution wrote the 10th Amendment for just such an occassion.

Comments

[jpe]

Interesting attempt, but there's just no way around Roe: either there's a right to privacy between women and their doctors, or there isn't. The 10th amendment is neither here nor there for the time being.

The post should be saved for the time the federal congress tries to ban abortion - then we're into 10th amendment territory, with the fed congress trying to usurp state powers to determine their own crim codes. (of course, as you note, such a post would be of purely academic interest, since the court interprets away the 10th in favor of a super-strong Commerce Clause.)

[Aaron]

There may be a right to privacy, but that does not (and should not in my opinion) apply to abortion. I intend to write a post on this, but we (through the government) consistently tell people and women what they can or cannot do with their bodies - this would be another example.

[jpe]

We do tell people what they can do with their bodies, but we don't really interfere in the doctor/patient relationship (except to guarantee safety). I don't think I can think of another operation that has been banned (perhaps because Roe would be immediately applicable if the government tried to ban some operation on non-medical grounds).

[Aaron]

No other "operation" involves another life. I don't know of many people that would argue removing a gall bladder and removing an unborn baby are the same thing.

This does not violate any privacy between a doctor and a woman. No one is forced to turn over medical records or some such. We tell doctors all the time that they can't give certain people certain medicines. Outlawing abortions would no more violate the doctor/patient relationship than telling a doctor not to prescribe oxycodine to people who may not need it.

[jpe]

No other "operation" involves another life

Neither does abortion, per Roe.

We tell doctors all the time that they can't give certain people certain medicines.

On safety grounds. That's the important part. If Christian Scientists came to power in some state and tried to ban blood transfusions on moral grounds, Roe would be used to strike the ban. Why? Because the state can't interpose itself between the patient and the doctors for any other reason than safety.

[Sam]

Actually, JPE, I am excited for the possibility that Christian Scientists get more power. Oh how happy the Christian masses who enjoy aspirin would be upon discovering that it had been outlawed.

[seeker]

I don't think abortion is a christian issue. It's an issue of natural morality - it's a HUMAN RIGHTS issue - the child has a right to life. As always, people may have religious or philosophical motivations, but for public policy, they must argue from natural law and ethics.

Here, the argument is simple. "We hold these truths to be self-evident..." That preamble can't justify everything that comes after it, but in this case, it's life.

And I think that we can make a logical decisiona bout when a fetus has a life to protect, and I don't believe it is at either end of the spectrum, conception or birth.

[Jami]

I find it interesting that so many are opposed to the abortion ban. No one argues the fact that is illegal to commit suicide. If you kill yourself then you are a murderer. Yet if you kill your unborn innocent child you made a choice. Everyone wants to protect the choice. But really we are not all looking at the whole picture its not a choice. It is a living breathing human, a child. I support the Abortion Ban. I do belive that with an abortion Ban there must come change, there must be made available birth control that is affordable to everyone. There must be more enfasis on Sex Education in the schools. And if someone is pregnant and dosnt want it there needs to be support and someone to help and counsel and offer the adoption option. But all is all I think the ban is going in the right direction. I hope other states will follow.

[Louis]

Right, a 13-girl is raped by her father and becomes pregnant. What to do? Why, offer her "support" and the "adoption option." This is what comes of fanatical, fetus uber-alles types like you.

If you don't like abortions, don't get one. Otherwise, MYOB.

[seeker]

Yeah, let women kill their unborn - in fact, even if they are born, who are you to tell them that they can't kill their children? Fascist!