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March 15, 2006



You know, there is a reason that we waited over two and a half years before invading and liberating France in WWII.

Shaun G

Re: the Judith Brown quote ...

Mrs. Brown is confusing strategy with ideology. Yes, 3,000 babies die every day, but if the worst-case scenario happens — the Supreme Court rules against the law, adding to the perception of Roe as a "super-duper precedent" — then the deaths of 3,000 babies a day will likely continue for quite some time in the future. And even if the Supreme Court one day has a pro-life majority, it'll be that much harder to justify bucking precedent.

Then again, the strategy does carry with it some uncomfortable utilitarianism ... it asks us to "sacrifice" the lives of thousands of babies now for a better chance of saving lots more babies later. I don't know if I'm completely comfortable with that.

Chris Sullivan

I tend to go with Judie Brown of the American Life League.

This seems like a good law and we ought to be supporting it.

It's possible to get so tied up in tactical analysis that one fails to support someone taking a good intiative.

"Paralysis by analysis" I think it's called.

God Bless

Jay Anderson

"This seems like a good law and we ought to be supporting it."

Actually, it's a bad law if you're interested in actually seeing Roe v. Wade overturned.

But, despite my reservations regarding the wisdom of the approach taken by South Dakota, we sorta have to support the law now that it's a done deal.


I think its a good idea. Far too long the pro life effort has confined itself to pursuing what some self-appointed arbiters of what's "possible" or "strategically advisable", and sacrificed the coherency of the pro life position, and much of its urgency.

Which is probably why proabort opponents spend so much effort tearing down a piece of legislation that, if they're right, they ought to embrace.

If the proaborts thought it would actually retard the prolife movement, they'd be all in favor of it. But the fact that they are nervous about it, and have been admitting for a while that the current exceptions mute, or diminish the cogency of the prolife argument tells you much

What also should tell you much it the manifest change that a debate about these laws, rather than parental notification, would hold for the "hearts and minds" debate, that the moderate prolifers profess to want to have.

That debate shouldn't be about whether this incremental restriction is reasonable, or whether objecting to it discloses the other side as unreasonable. That's a debating society fencing match.

The debate should be about whether or not abortion is murder--the killing of an innocent life. Its a debate that consistent polls show is winnable with the majority of americans (what remains is to get them to admit what follows from that). And its one that shows that the fencing matches that go on in the blue state coastal enclaves of elites are exercises in futility.

Donald R. McClarey

I support the South Dakota law. I hope many states will pass such laws. The Supreme Court is not an institution sealed in a cocoon, with jurists as secular clerics disinterestedly serving the Law. Justices are keenly aware of the environment in which they make their decisions. These laws will send a clear message to the court that Roe will never be settled law. At worst, Roe will be reaffirmed in a 5-4 decision which will further delegitimize it; at best, some pro-abort justice will realize that further attempts to shore up Roe are futile in the long term, that the damage that Roe is doing to the reputation of the Court increases every day, and that it is time to return this issue to the People.

Jay Anderson


I must say that's the most compelling argument I've read yet in favor of the South Dakota abortion ban.


I hope the naysayers are wrong and that this law will stand, and also that it will bring about the overturniing of Roe. The consequences will be stunning, not the least of which will be the end of the Republican party, Bring it on!


The Warsaw Ghetto was doomed too. But we're awfully glad they fought back, especially considering they were doomed even if they didn't.

And I'm not so sure the South Dakota law is doomed. :)


I do not disagree with the logic of NRO or Jodi Bottum, but at a certain point shouldn't one stand back and thank God for civic acters that are less well versed in the game, but rather push with their hearts and minds in the avenues available to them?

Think about it. Plessey was reaffirmed multiple times, and then fell like a house of cards. Liken another Roe reaffirmation in the Supreme Court to a teacher trying to quiet a class: if the teacher does it too many times, his authority will be severely weakened.

Consider also federalism. It is a heartening thing to see people reaffirming their right to act politically for the protection of the young--it is inspiring even. Just because it fails to fit into the big plan in DC does not mean it will fail to have great effect in raising the pressure on the Court, heartening other states to open (but legal) rebellion of Roe, and contribute eventually to the end of, let's not forget, abortion (not Roe). Encourage people to push this issue; don't discourage them. If every state were as hopeful as South Dakota (and hopefully others do catch that enthusiasm), then Roe wouldn't need to be overturned; rather it would sit on the books of case law like a county ordinance against spitting tobacco on mainstreet.

Roll the dice people. Where's the hope?


My expectation is that this law will be struck down in the lower courts and will never reach the SCOTUS.

That said, who can blame the governor for signing the bill? This piece of legislation crosses your desk, what do you do? This demonstrates (in my mind) that he is truly committed to the pro-life cause, unlike some Republicans (Bush). It might be the right law at the wrong time, but miracles have happened. I would never forgive myself for vetoing such a bill.


I do support this bill...here are a couple interesting links:

Tony Snow: http://www.jewishworldreview.com/tony/snow.php3

Bishop Samuel Aquila (currently our Apostolic Administrator for the Sioux Falls Diocese):

(Sorry, didn't add hyperlinks)


Donald put it about as well as it can be put. The more states that pass such bills, the less legitimate Roe looks. (Even Ruth Ginsburg has begun to express doubts about the original ruling.) Interestingly, legalized abortion, which at the beginning (i.e., 1970's) did not seem to be a territorial issue like slavery had been, seems on the verge of becoming very territorial indeed.

As for anon's comment, that the overturning of Roe would have as a consequence "the end of the Republican party":

This all depends on whether or not the Democrats abandon "abortion rights" as an issue at the national level and decide as a party not to pressure the many pro-life Democrats in red state legislatures. We'll see ....


The more states that pass such bills, the less legitimate Roe looks.

Can we please stop fooling ourselves that this is a fight about logic or reason???? Roe has NEVER looked legitimate. From the first day it has been criticized as lacking any reasonable basis in law or history, as even its supporters admit. Let's please stop thinking that, if we only come up with the perfect argument against abortion, if we only provide undisputable proof, by ultrasound, DNA, or otherwise, that the unborn are living human persons, then the court will be compelled by logic and reason to overturn Roe.

It has never been about reason. It has always been an "exercise in raw judicial power." It has always been an arbitrary use of force, and you will not change anything by believing that all we have to do is appeal to reason and show that Roe is not "legitimate."

"There is an appointed time for everything, and a time for every affair under the heavens."

I return to my first point, my first analogy above about WWII, which has been ignored. Why does a wise general fight a given battle at a certain time, and not earlier? Does a wise farmer plant his crops in November? No? Why not?

For the theologically-minded, saving souls is more important than saving lives, even the lives of the unborn. Yet, did Jesus come during the time of Abraham? the time of Moses and the exodus from Egyptian slavery? the time of the Babylonian captivity? No?? Why not? Why did God allow thousands of years to pass, why did He allow countless people to endure damnation, before He sent the Savior? Hmm?

There is a time, and a place, for everything. Now is not the time. This so-called "law," which is nothing more than a PR gimmick, will itself be judicially aborted, and it will never take effect, and it will not stop even one single abortion.

Worse yet, the Court will not use this as an vehicle to overturn Roe/Casey, but the pro-aborts on the Court may very well use it as an excuse to twist the knife in our backs by reaffirming Roe/Casey. Meanwhile, the ancient Stevens and Ginsburg will hang on at the Court, refusing to retire so that there will be no possible successor to overturn. And if they should nevertheless leave the Court, this gimmick will guarantee that the confirmation process will be nothing but about this case. And I have another unpleasant fact for you all -- we most likely do not have the votes in the Senate for an anti-Roe justice that will create a majority on the Court. At best, we could confirm one only through the same dissatisfying stealth process that we have gone through before. But that process will be a non-starter if this case is still pending when an opening appears at the Court.


Bender is right, and those who support this tactic are virtual enemies of ultimate prolife success in society and the courts. This is an exercise in moralistic self-indulgence and exhibitionism. Let's hope that the harm is minimal.


Two points:

1. We've been down this path before. After Reagan made several appointments to Supreme Court, states started passing very restrictive laws. Guam, I believe, enacted something akin to a total ban on abortion. In the end we got Casey, which solidly reaffirmed Roe, made it stronger, and in some ways expanded it as it extended the right to abortion to the 3rd trimester.

2. Please note that we can agree about goals but disagree about tactics. Just because you think a particular strategy is not cost-effective does not mean that you don't share the goal. Historically, the prolife community has not done a good job of allowing free debate about tactics, tending to reject those who suggest different tactics as enemies of the cause. (Jodie's reaction to the NRO comment is a prime example.) I tend to think that, if we can decide elections, we should be able to do more than pass laws that are sure to be struck down in court before they even take effect. But that is a topic for another thread . . .

Scott Fischer

It's bothersome to me that all those who so vigorously state that now is not the right time seem so sure that they are the final arbiters of when that is. Where's God in this? Maybe this is the right time, in God's plan.

I would suggest a little biblical insight from Acts 5:38-39 "So in the present case . . . let them alone; for if this plan or this undertaking is of men, it will fail; but if it is of God, you will not be able to overthrow them. You might even be found opposing God!"


It's deja vu all over again. See http://www.msu.edu/user/schwenkl/abtrbng/stablw.htm

"Two states (LA, UT) and the Territory of Guam enacted "test" laws prohibiting most abortions after the Supreme Court's 1989 decision in Webster v. Reproductive Health Services. In 1992, the Court's ruling in PlannedParenthood v. Casey, held that a general abortion ban would fail Constitutional muster under the new "undue burden" test. In 1992 and 1993, respectively, the Court declined to review the cases striking down the laws of Guam and Louisiana. Utah did not appeal a lower court's decision finding its 1991 abortion ban unconstitutional."


It's bothersome to me that all those who so vigorously state that now is not the right time seem so sure that they are the final arbiters of when that is.

It's not about being the final arbiter, but taking an informed look at the current political climate and realizing that this law will ultimately do more harm than good. It might make it more difficult for Bush's next SCOTUS appointment to be confirmed - and anyone who thinks Kennedy will just change his mind on the matter are just fooling themselves.


I support the law. Much of the commentary against the law is that it is too drastic, and that the nation is not ready for such a law yet. But that misses the point. The people of South Dakota, through their representatives and Governor are ready for such a law. States should continue passing such laws so long as they are able and as long as their constituents support the law.

Also, Donald McClarey is spot on when he says that if anything, such laws show that Roe is not settled law. No matter how many times it's affirmed, Roe will never be settled law, just as Plessy v. Ferguson was not settled law after over 60 years.



The law can not simply be reduced to a PR gimmick: it is a law.

Your analogies are savvy, but miss the mark here, because where they fail is where my argument lies. A general is in complete command of his army, a farmer, his field. In a federal, constitutional republic, there is no such general, no (federalist!) farmer. The generals and farmers are the citizens, representatives, and governor of S. Dakota--and they made the call on their field of battle.

I understand your frustration, but the question remains: where exactly do you think the general command ought to be in the Pro-life movement? In the country? The federal level? But then isn't that the problem?

And if you won't set down the idea of a command and control in the pro-life movement, then what about a standing order to engage the enemy? You say we need to pick our battles, but battle is upon us! (kudos to anyone who can pick the bastardized quote out of this last line.)


MTM has a point. For years the NCAA chipped away at the flanks of Plessey, with mixed sucess. It was only because they decided to attack seperate but equal head on that the Brown decision came to be. It should be noted that Brown was not considered a slam dunk when the case reached the SCOTUS. The same type of questioning and Justice counting went on then, as it is now with respect to Roe.

The fact is you never know when the time is right. If the democrats win the White House in 08 he, or God forbid, she will probably have two appointments is short order. We will then have to rely on the continued good health of Justice Scalia to prevent a solid and young pro-Roe majority.


Let's not forget that the pro-life strategy purists advocated a vote for the Constitution Party rather than Bush. If that strategy had been a "success" we wouldn't be having this conversation. Scalia and Thomas would be outnumbered and it would probably have stayed that way for a generation.

And: let's stop pretending that the Dems are ok except on the issue of abortion. They can't possbly be correct about (nearly?) everything else when they are so wrong on such a central issue. NOTE: This is not a defence of Republicans. It's just that I'm tired of hearing suggestions (here and elsewhere) that if the Dems change that position all will be right with the world.

Fr Martin Fox (Septimus)

People seem to think that it matters when "the case" comes to the Court, because if it comes too early, the resulting negative judgment will make Roe that much more a "super-duper (doopity-doo?) precedent."

But it doesn't matter. Nope; not a whit.

Why not?

Because the problem of a "super-duper (duper, duper, with a cherry on top) precedent isn't the cases; it's the quality of the jurisprudence represented in the justices of the Supreme Court.

Meaning: if we have enough good justices, it doesn't matter; if we don't; it doesn't matter.

So, it doesn't matter.

By the way, why does everything think that going through the courts is the best way to overturn Roe? We can do it legislatively--and, no, I don't mean via a constitutional amendment.

We do it exactly as Justice Blackmun, the author of Roe, told us. In Roe, he said (I'm paraphrasing from memory) that the court could not determine when life begins. But -- this is key -- were the personhood of the unborn child, under the 14th Amendment established, then the appellant's claim (i.e., Roe) "would collapse."

So it's clear: the personhood of the unborn child must be "established" under the 14th Amendment.

So how do we do that?

Well, the Roe Court didn't say; but here's what it did say: that the Court couldn't do it!

So that leaves the door open for CONGRESS to do it.

In fact, such legislation is before Congress: the Life at Conception Act, H.R. 552, to declare unborn children persons under the 14th Amendment. Go to the National Pro Life Alliance to learn more.

Now, some might say, "gee, that's a longshot"--yeah, kinda like getting the Supreme Court to overturn Roe! And, notice what we're discussing right now: slowing down pro-life legislation because of the "we have to do it through the courts" strategy.

So instead of slowing down, why not pursue every avenue? Even if we don't get the Life at Conception Act right away, the pressure will only help pop out other prolife legislation.


The law can not simply be reduced to a PR gimmick: it is a law.

Its not a "law" if it is permanently enjoined from being enforced. It is not a law if all it is is ink on a page and a gimmick for politicians to say that they have done something.


the personhood of the unborn child must be "established" under the 14th Amendment. . . . that leaves the door open for CONGRESS to do it.

Not after City of Boerne v. Flores, 521 U.S. 507 (1997), where Justice Kennedy (sigh, yes, Justice Kennedy) stated on behalf of the Court, "Congress' power under § 5 [of the Fourteenth Amendment] extends only to 'enforc[ing]' the provisions of the Fourteenth Amendment. The Court has described this power as 'remedial,' South Carolina v. Katzenbach, supra, at 326. The design of the Amendment and the text of § 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment's restrictions on the States. . . . Congress does not enforce a constitutional right by changing what the right is. It has been given the power 'to enforce,' not the power to determine what constitutes a constitutional violation. . . . If Congress could define its own powers by altering the Fourteenth Amendment's meaning, no longer would the Constitution be 'superior paramount law, unchangeable by ordinary means.' It would be 'on a level with ordinary legislative acts, and, like other acts, . . . alterable when the legislature shall please to alter it.' Marbury v. Madison, 1 Cranch, at 177. Under this approach, it is difficult to conceive of a principle that would limit congressional power. See Van Alstyne, The Failure of the Religious Freedom Restoration Act under Section 5 of the Fourteenth Amendment, 46 Duke L. J. 291, 292-303 (1996). Shifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained in Article V."




I am not trying to anger you but repeating your error in logic is not a refutation: it is indeed a law passed and signed by the elected government of the state of North Dakota. Things are what they are: a Coke pop-cap prize contest is a PR stunt, this is law. Just because the law gets enjoined does not reduce it to the status of a Coke commercial. Just because the passage of a law creates a public impression does not mean it is not still a very serious thing in and of itself. You can't instrumentalize this as you have done: reducing a very big law to the level of a well placed wink to by a baby kissing politician.




I am not trying to anger you but repeating your error in logic is not a refutation: it is indeed a law passed and signed by the elected government of the state of North Dakota. Things are what they are: a Coke pop-cap prize contest is a PR stunt, this is law. Just because the law gets enjoined does not reduce it to the status of a Coke commercial. Just because the passage of a law creates a public impression does not mean it is not still a very serious thing in and of itself. You can't instrumentalize this as you have done: reducing a very big law to the level of a well placed wink to by a baby kissing politician.

Fr Martin Fox (Septimus)


Has the Supreme Court ever ruled that the text of the 14th Amendment positively excludes an unborn child being a person? I see nothing in the text that excludes it.


Mike -

Of course it will be struck down by the lower courts - they are bound by precedent. But it will be appealed, and all it takes is 3 votes for the SC to grant cert, which we have. Make no mistake, this is going to the SC - the only issue is how many anti-Roe votes there are. Scalia, Thomas, Alito, and (maybe) Roberts. But 4 votes isn't enough. About the best we can hope for is for Kennedy to agree to some further chipping away - maybe a harder line on 2nd and 3rd trimester abortions. We'll see...


Correction. It takes four votes to grant cert. This is known as the "Rule of Four." See http://en.wikipedia.org/wiki/The_rule_of_four

And why would any of the anti-Roe/Casey justices vote to grant cert knowing that there are 5 votes to reaffirm the decision they seek to overturn? Far from giving them an opportunity to overturn Roe/Casey, that would simply ensure that the bad precedent is further stengthened.

I think we can rest assured that the SD law will not reach the Supreme Court, unless there is another appointment between now and when the court of appeals upholds the lower court's decision that the law is unconstitutional. And even then, it would be an extremely risky thing for the anti-Roe/Casey justices to do. The last time they tried it, they got burned. In fact, that's how we got Casey. See my prior post about deja vu all over again.


Has the Supreme Court ever ruled that the text of the 14th Amendment positively excludes an unborn child being a person? Father Martin: Yes.

The Supreme Court explicitly and positively stated that "the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." Roe v. Wade, 410 U.S. 113, 158 (1973)

Indeed, even the South Dakota legislature apparently believes that the unborn are NOT full persons because, under this new "law," it is only a five-year felony to murder them, while murder of a born person carries a penalty of life in prison or death.

Moreover, Paul Benjamin Linton, former General Counsel of Americans United for Life, has written in First Things (Nov. 2002) that "it should be clear that no member of the Court—past or present—believes that the unborn child is a 'person,' as that term is used in Section 1 of the Fourteenth Amendment. Seventeen justices have sat on abortion cases since and including Roe, and not one has ever stated that the unborn child is a constitutional person. . . . . No present or past Justice has ever taken the position that the unborn child is, or should be regarded as, a 'person' as understood in the Fourteenth Amendment, including the late Justice White, perhaps the most eloquent critic of Roe v. Wade. . . . But there is more than silence to indicate the Justices’ views. Dissenting in Casey, Justice Antonin Scalia stated, 'The states may, if they wish, permit abortion-on-demand, but the Constitution does not require them to do so.' This statement, in an opinion that Chief Justice Rehnquist, Justice White, and Justice Clarence Thomas joined, quite obviously is not compatible with a recognition of personhood."


And then there is the infamous Floyd v. Anders case, 440 F. Supp. 535 (D. S.C. 1977), where a doctor in South Carolina attempted a prostaglandin abortion, but the child was born alive. Under hospital care, the premature baby lived for 20 days before dying. Criminal charges were brought in state court for murder and committing an illegal abortion. The federal district court enjoined the prosecution, ruling that, because he was not viable in the sense that he could live indefinitely outside the womb, the victim was not a person, but was merely a "fetus." While he lived for 20 days after birth, "the fetus in this case was not a person whose life state law could legally protect," the district court ruled.

Fr Martin Fox (Septimus)

Bender - with all respect, you didn't answer my question. Perhaps I didn't make it clear.

Roe ruled that "person" in the 14th Amendment didn't positively include the unborn; however, Roe further said, were the personhood of the unborn established, the central holding of Roe would "collapse."

Obviously, then, Roe did not exclude the 14th Amendment applying to the unborn; it simply didn't construe the text that way -- i.e., Blackmun and his majority did not feel compelled to do so. But it is noteworthy -- particularly given Blackmun's bias -- that he didn't go all the way, and say that the 14th Amendment couldn't be construed that way. The fact is, Roe left the door open.

So my question is, has the Supreme Court ever after closed that door -- and I mean, explicitly? I am unaware of it. My understanding is that the law in this area has not touched this issue; naturally, the Supreme Court prefers not to deal with it. So (I believe) it has not.

Therefore, I would argue the question of whether the 14th Amendment can apply to unborn children, as persons, is an open one. Unless the Constitution positively excludes it (which the Supreme Court has not said), then why can't Congress take this step? The 14th Amendment does positively accord to Congress the power to enforce the Amendment with appropriate legislation; that the Roe decision said, "we can't do it," certainly means someone else must! The actual text of the 14th Amendment points to...CONGRESS.

Then, the issue becomes, at least in a significant way, one of deference to Congressional action, as well as deference to prior precedent of the court.

(Finally, I would point out that were there ever a direct battle between the Court and Congress, Congress has yet another arrow in its quiver: it can circumscribe the Supreme Court's appellate jurisdiction. But that's "the nuclear option.")

Fr Martin Fox (Septimus)

...As loathe as I am to say it, Roe actually got this right -- the 14th Amendment is silent on an unborn child being a person; therefore, the Court couldn't "create" that reality. (Would that such caution had prevailed altogether! Obviously it was convenient at that point.)

But there is a huge difference between saying the Constitution is silent -- leaves the question unanswered -- and saying it excludes it -- answers it negatively.

My question to you was and is: has the Court ever construed the Constitution such that the question is answered negatively -- such that the 14th Amendment is construed as excluding "person" being extended to the unborn.

I remind you, and other readers, that the actual text of the 14th Amendment simply doesn't address the question, because it wasn't framed to say "who" is a person, but rather, who is a "citizen" -- and along the way, it referred to "persons born or naturalized" -- hence, indirectly asserting who are indubitably "persons" under the amendment. Ergo, this statement about persons, as it stands, is hardly exclusionary: it doesn't say, ONLY those born or naturalized are persons -- because PERSONHOOD is not the main point of the text!

Clearly, reasonable people might disagree over whether the 14th Amendment can be properly extended to the unborn, by legislation. I.e., perhaps a new amendment is the proper way. (But Roe didn't say that, interestingly. It could have. But it didn't.)

But again, my original question was whether the Supreme Court has actually closed this door, explicitly. Do you know?


Fr. Tom Eutenuer, President of Human Life International discussed this on EWTN"s The World Over on Friday. He said the South Dakota legislators studied Roe vs. Wade and all related issues for three years before drafting this law. There was depth and breadth and thoughtfulness here. The testimonies of thousands of post-abortive women who had been hurt by abortion were also considered. On the other side, Planned Parenthood produced only one witness against this law. Fr. Euteneuer said that this law through the representatives expresses the desire of the people of the state - as opposed to Roe vs. Wade which expressed the desires and raw power of 7 individuals. He added that Planned Parenthood expresses great concern about this law on its website - and that it has great value regardless of whether it is overturned or not.


I would like our state to pass a similar law. How did you do it? Prayer meetings and letters/petitions? Let me know.
Love in Jesus Christ, Heather of Mass

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