On the southern edge of Sioux Falls, where shopping malls and large suburban churches begin to give way to prairie, there is a squat, bunker-like brick building with a heavy flat roof and just a few reflective slits for windows. The entrance — a reinforced glass door manned by a security guard — is tucked away at the back. This is South Dakota's only abortion clinic. When the last doctor retired, no one dared take up the job, so these days Planned Parenthood, which runs the place, flies doctors in from neighboring Minnesota once a week. Soon even this extremely limited access to abortion could cease, however. On Nov. 7, the people of South Dakota will vote in a referendum whether to adopt a sweeping state law that would make abortion a crime.
This is a battle with nationwide significance. The law was passed in South Dakota last March with the express intent of provoking a challenge to the famous Roe vs. Wade supreme court ruling that in 1973 gave women in the US the right to an abortion. If South Dakota does outlaw abortion, as many as 30 other states could soon move to impose their own abortion bans.
This is America's abortion debate in its purest, most distilled form: yes or no. There is no province for doubt. Should a woman be compelled to carry a baby to term when doctors tell her it will be born with no brain? Should a pregnant woman forgo potentially life-saving medical treatment for the sake of the baby she is carrying? Should a woman be forced to give birth to a child conceived in rape? Yes, yes and yes, says Leslee Unruh, the guiding light of South Dakota's anti-abortion activists. She has devoted her life to ending abortion, driven by her own guilt at having a termination as a young woman.
Unruh is based at an industrial shed near the airport in Sioux Falls. This is where the protesters gather before they set out for the Planned Parenthood clinic, with their stark posters reading: “I regret my abortion.” This is where they pick up the signs that are dotted along every major road in South Dakota, calling for a definitive end to abortion.
In the letters column of the local paper, the Argus Leader, opinion seems to be running in favor of the ban, with little tolerance for those who won't fall into line. “I am tired of people ranting about how women have the ‘right’ to choose,” read one recent letter. “Osama bin Laden is pro-choice. He thinks he has the right to choose who lives and dies, based on his own twisted standards. Perhaps America's pro-choicers should elect him as their spokesman.”
But South Dakota's pro-choice activists believe a silent majority in the state does support abortion rights; it's just that most of them are not ready to come out and say so openly. “We are a pro-choice state in denial,” says a woman, who works in the state legislature at Pierre and asked not to be named. “I have a friend who insists that she is pro-life, but then she says: ‘I am not going to tell another woman what to do.’”
Moving the goalposts
In the years since Roe vs. Wade, a generation of anti-abortion activists have successfully shifted the debate about reproduction and abortion away from the primacy of women's rights to those of the child she is carrying. In South Dakota, the argument has taken an additional twist, with Unruh claiming that abortion also runs against the best interests of women. She says she is seeking to protect women from what she claims are the lasting psychological and physical scars of abortion.
While the arguments against abortion may differ, from South Dakota to Mississippi, one fact is clear: women's access to abortion in America is diminishing and the support for abortion rights from the political establishment is receding. The Democratic Party, once an unabashed defender of abortion rights, is edging away from such full-throttled support in an attempt to win back social conservatives from the Republican Party. Last year, Hillary Clinton gave a speech calling abortion a “sad, even tragic choice” and called for policies to ensure that “the choice guaranteed under our constitution either does not ever have to be exercised or only in very rare circumstances.” A number of Democratic candidates in these mid-term elections are avowedly pro-life. That would once have been almost unthinkable.
Next month the US Supreme Court is expected to take up arguments on a federal law that would impose fines and prison on doctors who perform abortions using a technique that pro-life activists have labeled partial-birth abortion. The procedure is used in relatively advanced pregnancies when the cervix must be dilated before the fetus can be surgically extracted. Relatively few such abortions are performed using that method, but the campaign against “partial-birth abortion” has become a crusade for the pro-life movement in the US and gathered important supporters. The bill was passed by nearly two-to-one in Congress, and US President George W. Bush gave it his enthusiastic support. It has yet to take effect.
At the same time, state legislatures have moved methodically to limit the extent of the rights granted by Roe vs. Wade, and a number have passed laws that would immediately outlaw abortion if the supreme court ruling is overturned. “The general strategy over the past 20 to 25 years has been to just layer seemingly simple restrictions one on top of one another so that it creates a kind of web of impediments that together make access to abortion exceedingly difficult for women who are young, or poor, or who have to travel great distances for access,” says Roger Evans, an attorney for Planned Parenthood.
Most states now allow abortion only up to 13 weeks. Others compel clinics to be equipped as if they were fully-fledged hospitals, making it expensive for them to remain in operation, or have restricted access to chemically induced abortions. Some states have imposed mandatory waiting periods. Some have laws that require women under the age of 18 to get written parental assent, or appear before a judge to argue for an exemption. They also make it illegal for minors to seek an abortion in another state. In some states, women are required to undergo an information session during which they will be warned about the possible psychological damage they could suffer if they have an abortion, or told that the fetus might suffer pain. And in many US states, women have to pay for abortions themselves; most jurisdictions now prohibit insurance cover.
Only a few hold-outs remain: the liberal coastal states of California, Oregon and Washington, and on the opposite coast, New York, New Hampshire, Maine and Vermont. But they could soon follow suit. Oregon and California are also holding referendums on abortion during this election season — on laws that would require parental notification of minors seeking an abortion.
But almost nowhere in the US is it as difficult to get an abortion as in South Dakota, which, even without the ban, has one of the lowest rates of abortion in the US (five per 1,000 women aged 15 to 44 compared to the national average of 16). In the past decade, the state legislature has systematically drafted legislation to limit access to abortion, passing five new bills last year alone. South Dakota requires parents of minors to be notified and a 24-hour waiting period. Abortions are performed at the Planned Parenthood clinic only until the 13th week of pregnancy, and the women must bear the US$500 cost. If they are from Rapid City, South Dakota's other main town, the clinic is a five-hour drive away. Last year, state legislators passed a law compelling doctors to tell women that if they have an abortion they would be terminating the life of a “whole, separate, unique human being.” That law is under challenge in the courts.
But these restrictions were still not enough for Unruh, who was beginning to lose faith in the incremental approach of the anti-abortion movement. “We'd been there, done that, and it still didn't work,” she says. “There were 800 women in South Dakota last year who underwent an abortion.” So Unruh consulted her supporters in the South Dakota state legislature, particularly Roger Hunt, a Republican whose fingerprints lie on eight or nine pieces of anti-abortion legislation and who is the sponsor of the ban. “South Dakota is a pro-life state,” he says. “It was certainly leading us to this.” Under Hunt's lead, a law emerged that would permit abortion only if the woman was in danger of imminent death. The only other recourse in the case of contraceptive failure is the morning-after pill. That will remain legal under the ban, though South Dakota law allows chemists to refuse to sell it on religious grounds. The law was approved by both chambers of the state legislature — with support from Democrats as well as Republicans — and swiftly signed into law by state governor Mike Rounds last March.
Greater political stakes
Hunt, a former navy lawyer, defends the broad sweep of the current ban. Allowing exceptions for a woman's health would give women too many excuses, he says. So would allowing an abortion in the event of a rape. “The first thing any abortion clinic is going to ask a woman is if she has been raped, and she can come in anytime and allege rape. How are you going to establish that?” Hunt says. “Realistically you would be negating the whole intent of the bill.” What about a 14-year-old girl who had been raped by a relative? Could he live with forcing her to carry the child? “I can live with that,” he says. He argues that allowing abortion in cases of incest would allow the perpetrators to bury the evidence. “When you allow an uncle, father or brother to have an abortion, they are taking away the evidence of incest.”
But Hunt is not really thinking about teenage girls in South Dakota, although he acknowledges that the bill would stand a far greater chance in the referendum if it made exceptions for a woman's health, or pregnancies that were the result of incest or rape. What he is really focused on, as he readily admits, is the Supreme Court.
Last year, Bush named two new judges with impeccable conservative credentials, Chief Justice John Roberts and Judge Samuel Alito, and anti-abortion activists believe their appointments could tip the balance in the court and overturn Roe vs. Wade. Hunt believes the odds could grow even more favorable during the remaining years of Bush's presidency. One of the more liberal judges, John Paul Stevens, is already 86, and his retirement or death could give Bush the opportunity to make lasting changes to America's top judicial authority. “You'd have to have your head in the sand if you didn't think that the bill would end up in the Supreme Court,” Hunt says.
First, though, the bill has to go before the voters of South Dakota. Within days of the ban, local activists decided to exploit a state provision that allows for legislation to be put to a referendum following a petition campaign. At first, Planned Parenthood was skeptical; the organization has focused on using America's courts to protect abortion rights, and was unsure about a change of strategy. But the response of ordinary South Dakotans to the ban took organizers of the petition by surprise; within weeks they had gathered more than 40,000 signatures — twice as many as required. The state's abortion ban was to be put to the ballot. Its pro-life movement, while a powerhouse in the state legislature, would now have to answer to the people.
Unruh knows the stakes are high, and she acknowledges that her opponents may have the edge. But that does not deter her. If the ban is defeated, she says, she will march right back to the state legislature in January and start over again. “It will never be over,” she insists.
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