Legislators Doing Their Job? I Don't Think So!

When I posted my brief post on this new South Dakota bill broadly banning abortions, even in the case of rape, incest, or the health of the mother, and called my post "Anti Abortion Judicial Activism Alert," I invited some rather foolish replies from commentors at Majikthise. I am delighted to procrastinate for a moment to explain exactly how foolish they are.

First of all, Chad wrote:

O.K., I can see where you might try to call this judicial activism, but that would be incorrect. The way that abortion was made legal was judicial activism. No one voted for it. No representatives of their constituents had any influence in the process. The person that "won" now wishes to have the case thrown out, but is blocked by liberal judges in lower courts, and in the supreme court. That's judicial activism. This is democracy. Representatives of the people of South Dakota passed a law for the state of South Dakota. That's not activism, that how it's supposed to work. I'm not here to debate the rightness or wrongness of abortion. I'm just pointing out a fact. The best thing that the pro-choice people could do, would be to not fight it. It would then never go before the supreme court, and could never overturn Roe V. Wade. If you want to have an abortion, move to Minnesota. It's not that difficult.

Now, I responded a bit more snarkily over at Majikthise, and I will try to tone it down here a bit. However, I am utterly clear that my goal in responding to these comments is not to have a productive conversation with Chad. Rather, I want to clarify some issues for folks who are persuaded by reason.

First of all, you would have a hard time convincing anyone whose interested in truth that this S.D. bill is not intended to get to the SCOTUS and overturn Roe. As the WaPo reports today:

The bill was designed to challenge the Supreme Court's ruling in Roe , which in 1973 recognized a right of women to terminate pregnancies. Its sponsors want to force a reexamination of the ruling by the court, which now includes two justices appointed by President Bush.

"The momentum for a change in the national policy on abortion is going to come in the not-too-distant future," said Rep. Roger W. Hunt, a Republican who sponsored the bill. To his delight, abortion opponents succeeded in defeating all amendments designed to mitigate the ban, including exceptions in the case of rape or incest or the health of the woman. Hunt said that such "special circumstances" would have diluted the bill and its impact on the national scene.

Secondly, I am tired of the false claim that no one voted on making abortion legal. That is simply false. States such as Hawaii, California, and New York repealed their abortion laws and Colorado, North Carolina, South Carolina and Georgia reformed and liberalized repeal laws. There were debates taking place in legislatures all over the country prior to Roe. Some legislatures rejected all repeal efforts, some accomodated some of their proposals, and some repealed the laws. Certainly Roe was a huge victory for the repeal movement.

Thirdly, this statement makes no sense to me: "The person that "won" now wishes to have the case thrown out, but is blocked by liberal judges in lower courts, and in the supreme court. That's judicial activism." What? You are saying that lower courts who do not violate constitutionally protected rights are liberal activists? "Roe" (Norma McCorvey) might be an anti-abortion activist now, but that doesn't mean that every court in the country should suddenly ditch Roe v. Wade.

Fourthly, this business about Pro-choice people not fighting the South Dakota law is just nuts. Of course Pro-choice people will fight the law. It's unconstitutional, not to mention utterly inhumane. You want to tell me that citizens should just sit back and allow a law to exist that makes it a felony for a 13 year old who has been raped and impregnated by her abusive father to get an abortion?

Lastly, this suggestion is just utterly naive: "If you want to have an abortion, move to Minnesota. It's not that difficult." Let's consider my example of the 13-year old raped by her father. How do you propose she get herself to Minnesota? Should she have a bake sale at school to raise money for her incest baby? You think she is going to be able to stay in Minnesota long enough to get the judicial by-pass to get an abortion as a minor? What if the person who agrees to get her to Minnesota gets charged with transporting a minor across state lines to obtain an abortion? And, let's say that she does get the money and transportation to get to Minnesota. What will she find outside the clinic when she gets there? Droves of anti-abortion nuts calling her a murderer for killing a life. Will they care that she is repeatedly raped and abused by her father? Will they care that she is totally mentally incapable of raising a child or even get herself to any good pre-natal care?

What bothers me the most about anti-abortion folks such as Chad above is that they are so clearly misogynistic. Anyone who supports this S.D. bill does not care about women. To decide that any woman raped, abused or facing a dangerous and risky pregnancy doesn't have a right to terminate her pregnancy and take care of her own health and wellbeing is just plain disgusting. Do any of these folks have women in their lives they care about? Are you telling me you would force your own mother to carry a pregnancy that resulted from a rape to term? How sick is that?

Now, let me turn to Robert who wrote:

Legislators legislating is exactly what they are supposed to do. Sometimes, as in this case those laws get challenged in court. This is no way shape or form is Judicial Activism. It is simply Legislators doing their job.

Legislators legislating bills that aren't unconstitutional is their job. But, passing a law that makes it a felony for a doctor to perform any abortion, except to save the life of a pregnant woman, is not what legislators have authority to do. Hence, why we have the SCOTUS.

I feel better now. I can get back to work.