South Dakota Watcher: Governor's statement
Now I found the exact quote that compares Roe v. Wade to Plessy v. Ferguson.
The reversal of a Supreme Court opinion is possible. For example, in 1896, the United States Supreme Court ruled in the Plessy versus Ferguson case that a state could require racial segregation in public facilities if the facilities offered to different races were equal. However, fifty-eight years later, the Supreme Court reconsidered that opinion and reversed itself in Brown versus Board of Education.
It's not clear to me whether the Court really "reversed itself" or whether it limited the scope of Plessy by taking new knowledge into account. The opinion for Plessy says,
We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
The opinion for Brown—I added the emphasis—says,
The impact [of segregation] is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system. Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.
In any event, in the time since Roe, has any knowledge developed to support a ban on abortion? The text of the South Dakota bill says so:
The Legislature accepts and concurs with the conclusion of the South Dakota Task Force to Study Abortion... that life begins at the time of conception, a conclusion confirmed by scientific advances since the 1973 decision of Roe v. Wade, including the fact that each human being is totally unique immediately at fertilization. Moreover, the Legislature finds, based upon the conclusions of the South Dakota Task Force to Study Abortion, and in recognition of the technological advances and medical experience and body of knowledge about abortions produced and made available since the 1973 decision of Roe v. Wade, that to fully protect the rights, interests, 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.
The Court didn't base its opinion in the case of Roe, however, on any conclusions about the beginning of life. It even grants that "recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone." It goes on to say that "when those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." To me, the most salient passage in the Roe opinion reads,
With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.
As I read Roe, a ban on first trimester abortions would make sense if subsequent medical discoveries revealed that all such procedures exposed the mother to more risk than originally recognized. Likewise, if a new technology permits delivery and viability of a first trimester embryo with maternal risk comparable to abortion, then abortion might lose justification under the terms of Roe.
One final issue I can think of concerns whether state legislature can reasonably put forth a conclusion regarding when life begins. We said that the judiciary can't. Medicine, philosophy, and theology hadn't reached a consensus in the 1970s, and they haven't done so today, either. But can the state legislature, speaking for the people, assert when life begins? I don't know, but even if the legislature can do so, it doesn't seem to give them any new rationale to restrict first trimester abortions.
I should note that Mike Rounds has a bachelor's degree in political science and well over ten years experience in government. I don't have any of those things, so maybe I missed a crucial point that makes the comparison of Roe v. Wade to Plessy v. Ferguson more apt.
When it comes to superficial pop culture references and making fun of trendiness, though, Rounds still has nothing on me. God, how did Philip Seymour Hoffman gain so much weight? Yeah, I know.
