While Bill’s most recent post focuses on the effects of the pro-choice movement’s overplaying of its hand in the Roe v. Wade era, the attempt to ban abortion altogether in South Dakota several years ago was a sobering experience for those of us in the pro-life camp. The push for an absolute ban seemed to me at the time, and seems now, an unfortunate overplaying of the pro-life hand. From both a strategic and a cultural standpoint, more incremental steps to restrict abortion are a much more promising step. Consider the contrast between the South Dakota ban, which was quickly repudiated, and the Congressional ban on partial birth abortion, which was upheld by the Supreme Court last year in Gonzales v. Carhart. The partial birth abortion ban reflected a national consensus; the absolute ban on abortion didn’t (and as we quickly learned, didn’t reflect a consensus in South Dakota either).
If the dangers of over-reaching are one lesson of the South Dakota experience, the other may be that the pro-life movement is placing increasing reliance on the argument that abortion causes longterm harm to women who abort their children, and should be forbidden in order to protect them from this harm. In a series of recent articles, Yale law professor Reva Siegel (who, it should be said, is as pro-choice as they come) documents the rise of the woman protective argument, and its prominence in the 2005 South Dakota Task Force Report issued in connection with the South Dakota ban. (For one example, see this article). This development strikes me as problematic for two reasons. First, while many women surely do suffer psychological and/or physical harm from abortion, it appears that many do not. At the least, the existing evidence seems too mixed and debatable to provide clear support for the woman protective argument, as C. Everett Koop concluded back in the 1980s based on the evidence as of then. Second, although there is a favorable reference to this argument in the Supreme Court’s partial birth abortion decision, it is not a promising argument as a constitutional matter. The argument that women should be protected from themselves is very hard to square with the Court’s sex discrimination cases. For those of us who are pro-life, the more traditional arguments based on protecting the unborn seem much more compelling, both as a empirical matter and in terms of the Court’s constitutional law jurisprudence.