Magazine article The American Conservative

Roe in the Balance

Magazine article The American Conservative

Roe in the Balance

Article excerpt

EACH YEAR on the Jan. 22 anniversary of Roe v. Wade, pro-lifers turn out in the nation's capital by the hundreds of thousands. At this year's March for Life, a decidedly hopeful mood prevailed despite grim weather. For the past 33 years, since the 1973 ruling in which the Supreme Court claimed that the state and federal governments lack the authority to ban abortions, the pro-abortion crowd has had the upper hand, with both the mainstream media and the courts on their side. That's changing.

High-profile abortion pushers who thrive in apoplexy mode now routinely gnash their teeth in public statements. Agitated by President Bush's new Supreme Court appointments and the wave of recent state legislative restrictions on abortion, Nancy Keenan, president of NARAL Pro-Choice America, believes it all spells doomsday for her movement. She has been sounding the alarm: Roe v. Wade will soon be dismantled. Yet even the apocalyptic auguring falls flat. Despite NARAL's aggressive opposition to the latest Bush nomineethe only nominee since Robert Bork on record stating he believes the Supreme Court erred in its decision on RoeKeenan's troops were unable to harass Samuel Alito significantly, let alone scuttle his confirmation.

Judicial and legislative developments since the Alito hearings are enough to give NARAL heartburn for years to come. Their terror alert began on the day of Alito's debut when the high court agreed to reconsider the legality of partial-birth abortion. After being mired in litigation for years, the law that prohibits doctors from performing the barbaric late-term procedure is expected to be upheld by the Roberts Court.

On Feb. 27, the Supreme Court ended a 20-year-old legal battle over protests outside abortion clinics. Justices ruled 8-0-Alito did not participate-that federal racketeering laws cannot be used to outlaw the presence of pro-life demonstrators near clinic entrances.

But the major political asteroid hit the next day when South Dakota became the first state in 14 years to pose a direct challenge to Roe v. Wade. The Senate voted 23 to 12 to prohibit virtually all abortions in the state. Even the typical exceptions for rape or incest, favored by President Bush-who said through a spokesman he does not support the ban -were rejected by South Dakota lawmakers, and doctors who perform abortions would be charged with a Class 5 felony, punishable by up to five years in prison. Before Gov. Mike Rounds even signed the bill into law on March 6, Planned Parenthood had already threatened a lawsuit challenging the constitutionality of the ban. Prepared for that eventuality, pro-life activists say they have already raised over $1 million to fund a protracted legal battle.

Similar bans are being proposed in six other states-Mississippi, Missouri, Ohio, Georgia, Indiana, Kentucky-and the Tennessee Senate recently passed a proposal to amend its state constitution to not include a right to abortion. Further, all 50 states now have abortionrestricting legislation either on the books or in the works in some form. Proposals in 21 states would require doctors to inform women seeking abortions that their babies will likely feel pain during the procedure. Fetal pain bills have already passed in Arkansas, Georgia, Minnesota, and Wisconsin. Other state legislatures are focusing on preventive measures such as requiring waiting periods, pre-abortion counseling, and ultrasound images before an abortion.

Understandably, pro-abortion forces fear a continued legal avalanche that will eventually give the Supreme Court the opportunity to reverse Roe v. Wade. Although neither Bush appointee said he would vote to overturn Roe, abortion proponents fear that both Roberts and Alito would add to the pro-life voices of Scalia and Thomas. That leaves a fivevote majority to uphold the precedent of Roe v. Wade in the unlikely event that a case comes before the Supreme Court before the retirement of Justice John Paul Stevens, who turns 86 in April, or Ruth Bader Ginsburg, 73 and rumored to be in ill health. …

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