South Dakota: Speaking Truth to Power

[Marty Lederman]

Re: South Dakota: Speaking Truth to PowerWell, I doubt the statute raises precisely the sex-based equal protection problem that Sandy suggests. The operative section provides that "No person" -- male or female -- "may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being unless it is necessary to preserve the life of the pregnant woman, or if there is a serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman." and that "No person" -- male or female -- "may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being unless it is necessary to preserve the life of the pregnant woman, or if there is a serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman."

To be sure, the statute has an express exemption for pregnant mothers but not for pregnant men . . . . cf. Geduldig   ;-)

Seriously, the carve-out for the pregnant women does implicate an equal protection violation, but it's not quite the one Sandy idenitifies.  Why is the woman exempted?  As Sam Buell notes, back in the pre-Roe days, states exempted women based on a paternalistic notion that the woman was the victim of an abortion, too weak and ignorant, and not sufficiently self-interested, to withstand the influence of those who would beguile or induce her to abort the pregnancy.

Sam writes that "surely the South Dakotans won't offer such a justification now. Society and the law have entombed the idea that women are weaker of will and less responsible than men."

Not so fast!  Check out sections 3 and 4 of the statute:
  Section 3. The Legislature finds that, based upon the evidence derived from thirty years of legalized abortions in this country, the interests of pregnant mothers protected under the South Dakota Bill of Rights have been adversely affected as abortions terminate the constitutionally protected fundamental interest of the pregnant mother in her relationship with her child and abortions are performed without a truly informed or voluntary consent or knowing waiver of the woman's rights and interests. The Legislature finds that the state has a duty to protect the pregnant mother's fundamental interest in her relationship with her unborn child.
  Section 4. The Legislature finds that abortion procedures impose significant risks to the health and life of the pregnant mother, including subjecting women to significant risk of severe depression, suicidal ideation, suicide, attempted suicide, post traumatic stress disorders, adverse impact in the lives of women, physical injury, and a greater risk of death than risks associated with carrying the unborn child to full term and childbirth.

So, you see, South Dakota is actually acting precisely in order to advance the best interests of women, who are too ignorant, vulnerable and impressionable to decide what is, in fact, in their best interests!

It is extremely disheartening that an American legislature would enact such "findings" in the Year 2006.  On the other hand, they make the litigation rather simple:  A court need not do very much more than quote these provisions verbatim in order to explain why the statute is unconstitutional under the Equal Protection Clause -- no need to even reach substantive due process.



Original Message ----- 

  From: Sanford Levinson 
  To: James Maule ; conlawprof at lists.ucla.edu 
  Sent: Saturday, March 11, 2006 1:32 PM
  Subject: RE: South Dakota: Speaking Truth to Power


  My colleague Sam Buell has an excellent op-ed piece in today's LATimes, http://www.latimes.com/news/opinion/commentary/la-oe-buell11mar11,0,12989.story?coll=la-news-comment-opinions, concentrating on the fact that the South Dakota law explicitly exempts women from any prospect of punishment.  Why doesn't this violate equal protection.  I.e., if abortion is murder, it is clearly the result of a joint conspiracy between the woman and her doctor (and perhaps nurses, etc.).  Indeed, it is almost certainly the pregnant woman who initiates the conspiracy (since there is really no evidence I'm familiar with that Planned Parenthood tries to drum up business by getting in touch with prenant woman ala realtors who send me postcards asking me if I want to sell our house).  So isn't this the most patent gender bias imaginable?  And what, incidentally, if the woman refuses to testify against the doctor, to whom she might feel some gratitude after all?  Will South Dakota be willing to send her to the slammer for contempt of court?  

  sandy
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