Somewhere in the black mountain hills of Dakota

Today’s Times reports on a legal battle in South Dakota to outlaw abortion:

Earlier this year the state assembly voted to ban abortions, with no exception other than the imminent death of the woman — not even for rape and incest. The law was deliberately provocative, passed in the hope of goading pro-choice campaigners into challenging it. That, the anti-abortion movement hoped, would send the issue all the way to the Supreme Court with the ultimate goal of overturning Roe vs Wade, the landmark ruling that legalised abortion. Abortion rights activists have indeed challenged the law. It will go before South Dakotans in a referendum on November 7 — midterm election day.

Roe vs Wade of course didn’t “legalise” abortion in the sense that prior to the ruling abortion was illegal and afterwards it was legal; its effect was to enshrine abortion as a Constitutional right, thereby overturning any state laws against it, and ensuring that any individual state assemblies who passed laws such as the one in South Dakota could be challenged through the courts. It’s this Constitutional right that William Rees Mogg was questioning when last year he quoted former Supreme Court nominee Robert Bork, who wrote:

“I objected to Roe v Wade the moment it was decided, not because of any doubts about abortion, but because the decision was a radical deformation of the Constitution. The Constitution has nothing to say about abortion, leaving it, like most subjects, to the judgment and moral sense of the American people and their elected representatives”.

Rees-Mogg added that in Britain “We can, after all, vote against members of Parliament with whose views we disagree — Americans take 30 years and half a dozen presidents to change the Supreme Court”, which is a fair point, if slightly odd coming from someone who’s had a seat in the House of Lords ever since being appointed a life peer in 1988.

The Wikipedia entry on Roe vs Wade says that opposition “comes primarily from those who viewed the Court’s decision as illegitimate for straying too far from the text and history of the Constitution, and those who believe in the personhood of fetal human life”, while support “comes from those who view the decision as necessary to preserve women’s equality and personal freedom”.

This isn’t enormously helpful if you believe in women’s equality and personal freedom and at the same time suspect that the decision may have strayed too far from the text and history of the Constitution. Nevertheless I hope the challenge to Roe vs Wade fails. Earlier this year the Guardian quoted Nancy Keenan of the abortion rights group NARAL Pro-Choice America as saying, “the anti-choice folks across the country are feeling emboldened by the climate. You have an anti-choice president; you have an anti-choice US house and senate”. This of course could change on November 7th. Like Gene, I think that Democratic control of one or (better still) both chambers of Congress would be a very good thing.


Read Zoe Williams in today’s Guardian.