Can we save Roe by ignoring South Dakota?

A pro-choice blogger says the best way to fight the South Dakota abortion ban is to ignore it.

Published March 10, 2006 11:05PM (EST)

Is ignoring the South Dakota abortion law the best way to fight it? That's what blogger the DCeiver argues in an intriguing post that -- depending on your politics and your propensity toward Machiavellian lines of planning -- will either repulse you or make your day. (Thanks to Rachel Sklar for pointing it out.)

DCeiver, who favors legal abortion, says that pro-choicers who are upset about the turn of events in South Dakota should fight the law in every way except one: by contesting its constitutionality in federal court. South Dakota is a very small state, DCeiver points out, and even before this ban was signed, few women there were getting abortions. (The state has one abortion clinic.) While the law was ostensibly meant to prohibit abortions in the state, we all know its proponents' real goal -- to prompt a Supreme Court reconsideration of Roe v. Wade, thereby opening the door toward a prohibition on abortion nationally. Therefore, DCeiver argues, filing suit against the law -- as some pro-choice groups, including Planned Parenthood, say they're planning to do -- is playing right into the antiabortion camp's hands. "Planned Parenthood is embarking on the EXACT course the opponents of legal abortion WANT them to," he writes. "Taking this matter to court is a fine way to make a big showy pageant of deeply held principles, but it's a trap -- the path inevitably leads to showdown in the SCOTUS against a panel of judges that are, in all likelihood, not predisposed to rule in favor of abortion rights. It's the one battlefield where victory is certain to be denied and it should be avoided at all costs."

There is, to be sure, a certain appeal to DCeiver's idea. Like something out of Sun Tzu, the tactic is clever and unexpected; winning the battle -- i.e., saving Roe -- by refusing to fight is the kind of plan that would discombobulate the antiabortion side to no end. And you can't quibble with DCeiver's more fundamental point, which is that pro-choicers needs to start focusing their efforts on the ballot box rather than on the courts. Abortion rights are imperiled in this country for one reason: Pro-choice politicians keep losing elections. And in a democracy, as the right is fond of saying, losing has consequences.

I asked Tim Grieve -- who runs Salon's War Room, and is an attorney whose insights on the federal courts I trust -- what he made of DCeiver's plan, and he noted that approaching the Supreme Court carefully, as DCeiver advises, is usually a good idea. Grieve cited Thurgood Marshall, who systematically brought many civil rights cases to courts in the 1940s before launching a frontal assault -- in Brown v. Board of Education -- on segregation. Marshall understood a basic fact about asking the court to set a national policy: Timing matters. When you take your case to the court, you want to make sure not only that you're dealing with a court that's sympathetic to your views but also, in a larger sense, that the nation is ready to accept the outcome you want.

But as Grieve pointed out, in the abortion battle, it's the other side -- the antiabortion side -- that may have a problem with timing. For decades, the right has been chipping away at abortion rights in much the same slow, systematic way Marshall fought segregation, but with the South Dakota law, it may well have made a mistake, acting too rashly. Today's Supreme Court is (very slightly) pro-Roe; the right can count on only four justices -- Alito, Roberts, Scalia and Thomas -- voting to overturn. Moreover, Americans broadly favor keeping abortion legal. It's true that at some point -- maybe some point soon -- those factors will change. But isn't that an argument for pro-choicers to take the fight to the court quickly, rather than delay?

There's something else about ignoring the South Dakota ban that doesn't sit well with me. Let's think for a minute about what Roe says: Abortion is a right that women across the land are entitled to. Roe didn't make abortion legal in only selected states; indeed, abortion was legal in many states -- California and New York among them -- before the decision came down. If the pro-choice side chooses, now, not to fight states like South Dakota -- and others that will surely follow -- that so blatantly disregard that decision, aren't they effectively abandoning Roe anyway? This is like destroying Roe in order to save it. What happens in South Dakota doesn't stay in South Dakota; at some point, this affects us all.

By Farhad Manjoo

Farhad Manjoo is a Salon staff writer and the author of True Enough: Learning to Live in a Post-Fact Society.

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