S.D. anti-abortion law creates rifts

Movements for and against struggling with broad political implications


South Dakota's ban on nearly all abortions, signed into law yesterday, has opened deep rifts within the anti-abortion and the abortion-rights movements, as the two camps struggle to frame the issue to political advantage.

The divisions have turned traditional abortion politics topsy- turvy.

Some foes of abortion - fearful that South Dakota has moved too far, too fast - find themselves reluctantly opposing efforts to protect all fetal life from the moment of conception. They are even angling to block another abortion ban that seemed likely to pass in Mississippi.

For their part, some abortion-rights activists feel they must acknowledge the sentiment behind the South Dakota ban by assuring America that they, too, regard abortion as a grave moral concern. But such language outrages others in their movement, especially abortion doctors, who say it stigmatizes and alienates their patients.

"There's a mood out there that change is in the offing," said John Seery, a professor of politics at Pomona College who has written extensively on abortion. "There's a lot of jockeying, a lot of testing, a lot of pushing the envelope."

The turmoil in both camps underscores the significance of South Dakota's law. It bars all abortions in the state, including the few performed each year in cases of rape and incest - and the hundreds done in the earliest weeks of pregnancy. The only exception is if physicians deem an abortion necessary to save a woman's life. Doctors who violate the law could be sentenced to five years in prison.

In signing the bill, Republican Gov. Mike Rounds acknowledged that it is, for now, a symbolic gesture. The law is to take effect July 1 but will almost certainly be blocked because it directly - and deliberately - challenges the Supreme Court's 1973 ruling in Roe v. Wade, which established abortion as a constitutional right.

An anonymous donor has pledged $1 million to help South Dakota defend the ban in court. Citizens of more modest means have stopped by the governor's office to drop off checks.

Supporters hope the ban will give the Supreme Court an opportunity to reverse Roe v. Wade, much the way the justices used Brown v. Board of Education in 1954 to overturn a decades-old precedent allowing racial segregation in public schools.

But analysts on both sides say that Roe is secure for now. Even if President Bush's new Supreme Court appointees - Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. - prove to be reliably anti-abortion, a majority of five justices is on record as backing Roe.

Promoters of South Dakota's ban are calculating that one of the liberal justices will retire - and be replaced by a conservative - before their case winds its way to the high court. But Daniel McConchie, vice president of Americans United for Life, warns that the South Dakota strategy could backfire.

If the public knows an all-out ban on abortion is headed to the Supreme Court, "getting a [conservative] justice through the confirmation process will be like World War III," McConchie said.

He'd rather rely on the Roberts court to chip away at abortion rights without overturning Roe. For instance, he hopes that in an upcoming case on the late-term procedure known as "partial-birth abortion," the justices might give the states more leeway to restrict second- and third-trimester procedures.

Many states bar abortions of viable fetuses, but the high court has insisted that such laws exempt women whose health is endangered by the pregnancy - and health is defined broadly to include not just her physical condition but her emotional state and even family circumstances. In practice, women can obtain abortions virtually until their due date.

McConchie said there's a good chance the present court will "narrow that loophole."

Such incremental steps would save many more fetuses than South Dakota's ban, said Mary Kay Culp, executive director of Kansans for Life. "As a pro-lifer, I feel guilty saying this, because people are out there all excited, but a ban is actually counterproductive," she said.

She and others argue that their movement needs more time to turn society firmly against abortion. They want to hold public hearings to investigate the alleged (and hotly disputed) risks of abortion. They plan to promote ultrasounds to fix an image in the public mind of the embryo as a beautiful, fragile human life. They aim to use more women who had abortions - and now regret it - as spokeswomen for their cause.

Until then, they're reluctantly advising legislators in Georgia, Indiana, Missouri, Mississippi, Ohio and Tennessee not to pass the bans under consideration in those states.

Instead, they urge legislators to pass provisions such as requiring women to attend counseling and to wait a day or more before an abortion. The latest trend is to require doctors to show women their fetal ultrasounds or inform them that their fetus might feel pain during an abortion.

Legislatures are continuing to drive abortion clinics out of business with laws regulating everything from the width of the halls to whether out-of-state doctors can perform abortions. There is one clinic in South Dakota and one in Mississippi, and two in Missouri (one of which offers first-trimester abortions only, two half-days a month).

Missouri state Sen. Jason Crowell - like his colleagues in South Dakota - refuses to be satisfied with making abortions harder to obtain. He views the procedure as evil and says the time is past due to act, no matter who is sitting on the Supreme Court.

"We've been debating this since 1973," Crowell said. "If not now, when? If not us, who?"

Stephanie Simon writes for the Los Angeles Times.

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