Video: Abortion Law

updated 2/24/2006 1:57:40 PM ET 2006-02-24T18:57:40

A direct attack on Roe v. Wade is coming from the South Dakota legislature.  The new bill, which outlaws abortion, makes no exceptions, not for a pregnancy caused by incest or rape.  It would only be legal—the only exception if it would save the pregnant woman's life. 

Doctors who perform abortions could face up to five years in prison.  The bill passed the State Senate 23-12.  It's expected to pass the House again and then go to Governor Mike Rounds' desk.  The bill's sponsor says he thinks the antiabortion movement has momentum on its side and a—quote—“change in national policy on abortion is going to come in the not-too-distant future.”

Republican South Dakota governor Michael Rounds, Mathew Staver, president and general counsel of Liberty Counsel and Brigitte Amiri, staff attorney with the American Civil Liberties Union Reproductive Freedom Project joined the ‘Abrams Report’ to debate and discuss the proposed bill.

To read an excerpt from their conversation, continue to the text below. To watch the video, click on the "Launch" button to the right.

DAN ABRAMS, HOST, ‘ABRAMS REPORT’:  My Take” is that the state lawmakers have got to know this bill effectively spits in the face of the U.S. Supreme Court precedent.  Not just because of Roe v. Wade, because the high court reaffirmed Roe when it revisited the abortion issue in 1992 in Planned Parenthood v. Casey.  A majority agreed that women have the right to have an abortion before the fetus is viable and to obtain an abortion without undue interference from the state. 

So whatever you think of abortion, this law is almost an insult to the court.  Governor, I know you've made it perfectly clear you support many abortion restrictions, but this is not an abortion restriction.  This is outlawing it.  I assume you've got to know that this wouldn't pass the court's test. 

GOV. MIKE ROUNDS ®, SOUTH DAKOTA (via phone):  I think most of the legislators that voted for this particular law expected to be enjoined immediately upon its effective date, which would be July 1.  I think what they want to do is to send a message that says if the court is prepared to look at Roe v. Wade they will look at a whole host of different challenges. 

Some will be limited in nature.  Some of them would be very, very significant.  This would be the most significant one, because it would be a direct frontal challenge to Roe v. Wade.  I think they fully recognize that and they proposed this two years ago, as well. 

There were some technical flaws in the bill what we call a technical veto on my part, but philosophically I think the vast majority of the legislature truly believes that this is one approach that should be tried or at least be offered as an option for the new court to take a look at Roe v. Wade.

ABRAMS:  But look, I mean every sort of all the people on the right and I think all the people who are being honest about this during the confirmation hearings of Roberts and Alito pointed out that even if Roberts and Alito were to believe that Roe v. Wade should be overturned, there still wouldn't be enough votes on the court to overturn it.  So is this just sort of a waste of time, symbolic procedure to say hey look everybody, here's what we believe? 

ROUNDS:  I know that there are a number of people within the pro-life community that believe that to be the case.  Apparently among our legislators, there were enough of them out there that said look, what's wrong with taking a number of different approaches, including this all-out attack directly on Roe v. Wade. 

ABRAMS:  Do they have nothing better to do? 

ROUNDS:  Well actually during the 35-day session, which is all that they have this year, they worked their way through about 460-some bills or somewhere in that neighborhood, so they've got a lot of things on their plate.  This is one of those items, which they have considered.  I think they probably considered it before the 35-day legislature actually started. 

But they look at it.  Every single bill has the opportunity in our state to be heard.  It passes through a committee in the House, the full House, a committee in the Senate, the full Senate, and with a minor modification it's going back to the House.  So there's apparently within our legislative body very strong support to overturn Roe v. Wade and they most certainly understand that there's a cost involved to it. 

They're actually setting up a fund to help pay for the—not only the cost to the state for defending the law, but they also want to set up to have to pay for—we know that the folks who would challenge it would also be able to collect their attorney's fees and the legislature has gone so far as to suggest that there would be funds made available through donations that might even help to offset some of that. 

ABRAMS:  Yes.  As you know, the legislature doesn't decide whether Roe v. Wade gets overturned or not, and as a result of that, and look, it's clear you're familiar with the law.  You're familiar with the precedent on this.  You can't sign this, right? 

ROUNDS:  Well one of the things that we do is before any bill gets to us, we do not decide and publicly discuss what our position would be on a specific bill.

ABRAMS:  Give us a clue. 

ROUNDS:  Well, I am pro-life and I do know that my personal belief is that the best way to approach elimination of abortion is one step at a time.  And I do think that this court will ultimately take apart Roe v.  Wade one-step at a time.  Personally, do I think that they're going to step in and do a frontal attack or accept a frontal attack?  No, I don't.  But there are a lot of people in South Dakota and across the nation that believe that it's worth a try. 

ABRAMS:  But again, that's a different issue.  I mean see that issue to me is a completely separate issue, to say certain restrictions on abortion—because I think that there is a legitimate debate within the Supreme Court and in the nation about what restrictions should apply on abortion.  But what troubles me about this is as you've pointed out this is not about restricting abortion.  This is about banning it, and the court has said you can't do that. 

ROUNDS:  That's correct.  But once again it's the court's interpretation of the Constitution. 

ABRAMS:  Yes.

ROUNDS:  The last time I think that they actually looked at it was about 16 years ago if I'm not mistaken.

ABRAMS:  Well there have been other cases since then.

ROUNDS:  Yes.  And once again, I think a number of the legislators have made it clear that this may very well go to an appellate court. 

ABRAMS:  Yes.

ROUNDS:  The existing Roe v. Wade will be upheld; it will move to the next court.  It will be upheld.  And the only place that it could make an impact or go into effect is if the court at the time that this law were to reach it were to say first of all that they would even consider it, which is  to a lot of people highly unlikely. 

ABRAMS:  Yes and for that reason, I would think that you wouldn't sign this particular law, even if you do support certain restrictions on abortion.  But we'll be watching, Governor, and we'll see what you do.  And we thank you very much for taking the time to come on the program.  We do appreciate it.

ROUNDS:  Sure.

ABRAMS:   Mat Staver, look, you'll concede, right, I mean this law is not constitutional as far as the U.S. Supreme Court's interpretations up until now, right? 

MATHEW STAVER, PRES., LIBERTY COUNSEL:  That's right.  I think you said it right at the very beginning.  This is not for what the other lower courts are going to do.  This is really a direct attack at the United States Supreme Court and by the best understanding of who's on that court right now it's probably a 5-4 decision to strike down this law.

ABRAMS:  Isn't there something insulting about it?  I mean it's basically saying we don't care what the court has ruled.  We don't care that the court has sort of laid out these rulings and they've laid out what restrictions are going to be acceptable and which ones aren't, with regard to a woman's health, et cetera.  And instead they're sort of creating this language—and this is number eight from the South Dakota law. 

It says why to fully protect the rights, interest and health of the pregnant mother, the rights, interest and life of her unborn child and the mother's fundamental natural intrinsic right to a relationship with her child, abortions in South Dakota should be prohibited.

I mean, first of all just that language, to me, sounds somewhat disingenuous, the notion that you need a legislature to create a mother's intrinsic right to a relationship with her child. 

STAVER:  Well Dan I think the bigger insult is the Supreme Court's decisions on the Constitution, when it invented a decision that abortion on demand. 

ABRAMS:  Look, there's a lot of dispute about Roe v. Wade and I think that most people actually think that in retrospect probably doesn't make a lot of intellectual sense, but now it is the law of the land.  And it is the law of the U.S. Supreme Court.  And my concern is that people like you are saying we don't care what the court says. 

STAVER:  Well I think this is an issue that has to go back to the Supreme Court.  This is the only way to get it directly there.  It will be no doubt enjoined at the lower court levels.  I'm sure you're going to find some major dissents at the appellate court that will say this law is constitutional and Roe v. Wade and Casey are unconstitutional.

ABRAMS:  I don't think you will.  Brigitte Amiri, I would be stunned, because that would basically be saying, I, as a lower court judge, am going to say I don't—not only do I not agree with the U.S. Supreme Court, but because I don't agree with the U.S. Supreme Court I'm going to create my own rulings and disregard the higher court.

STAVER:  Well but I think you'll find a number of judges that will say this is the Supreme Court's ruling, but it's not well reasoned and I disagree.

ABRAMS:  Wait.  That is—maybe I'm wrong.  Maybe I forgot my law school classes, but Brigitte Amiri, that's not what I thought lower court judges are supposed to do. 

BRIGITTE AMIRI, AMERICAN CIVIL LIBERTIES UNION:  Right.  They're absolutely bound by precedent and certainly not only are lower courts bound by precedent, but individual legislators are as well.  So I think what's also remarkable about this move by South Dakota lawmakers is that they have completely forgotten their duty to abide by the Constitution when passing laws. 

And I think that that's an extremely frightful situation.  And I also think that what's significant about this move is that we are actually seeing the true colors of the anti-choice movement.  What they are trying to do is ban abortions on a national level.  And that move is blatantly unconstitutional. 

ABRAMS:  But some of them.  I mean let's be fair, Brigitte.  Some of them are trying to do that and others are just trying to pursue certain restrictions on abortions.

The South Dakota lawmakers who voted for this are clearly trying to make sure that no abortions are available in the state of South Dakota.  But to sort of brush it and say oh well this means that everyone in this movement all feels the same way—a lot of them feel that certain restrictions should apply. 

AMIRI:  That's correct.  And in fact South Dakota has a number of restrictions already in place.  And also what we should be concerned about is not just the frontal attack on Roe, which we're seeing coming out of the South Dakota legislature now, but the slow chipping away of Roe v. Wade that's been going on for decades. 

And South Dakota is a perfect example of that.  The South Dakota legislature has put a number of restrictions on abortion and there's a complete dearth of availability of abortion in South Dakota.  Ninety-eight percent of counties in South Dakota lack an abortion provider. 

ABRAMS:  Yes, but is it so bad when you say Roe v.  Wade is being chipped away, I think if you look at what the public at large thinks, a lot of them do think that there shouldn't be just the opportunity for every woman or girl to get an abortion at any time in the first two trimesters.

AMIRI:  Well the vast majority of the public upholds—supports upholding Roe v. Wade and I think we have to look at the practical affect of the various restrictions that have been placed on abortion, like—in a state like South Dakota, where it's very, very difficult for women to obtain the constitutionally protected procedure.  And so I think what's interesting about what's going on and significant about what's going on in South Dakota is we are seeing a frontal attack.

STAVER:  Well I think what you can possibly gain is when this goes to the United States Supreme Court, you may have one justice switch his or her opinion, you don't know.  But you certainly might have another change in the justices.  And this bill, taking maybe a year and a half to two years to get there, you could have a different Supreme Court and you could have a Supreme Court that says in a 5-4 decision that Roe v. Wade and Casey were wrongly decided and not consistent with the Constitution.  I don't think the majority of Americans do support Roe v. Wade, because that says you can have an abortion  all nine months for any reason.

ABRAMS:  All of this stuff depends on how you ask the question and then it changes the results.  Do you support Roe v. Wade?  Yes.  But do you support restrictions?  Yes.  You know, it all depends on how you ask the question. 

Watch the 'Abrams Report' for more analysis and interviews on the top legal stories each weeknight at 6 p.m. ET on MSNBC TV.

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