Monday, December 7, 2009

South Dakota and Abortion

For the past few years the right wing in South Dakota has been attempting to outlaw abortion. While the attempts have mainly failed, the state continues to attempt to force a Supreme Court showdown on abortion.
There is no question that South Dakota’s law is unconstitutional. It disregards a constitutional right upheld by the Supreme Court seven times. In 1973 the constitutional right of privacy protecting a woman’s right to choose an abortion. South Dakota’s law strikes down a constitutional right and puts into jeopardy the system of which we live under.
There is a right to personal privacy in the Constitution. South Dakota’s law ignores constitutional precedent created and upheld by the Supreme Court, including the three key cases: Griswold V Connecticut in 1965, Roe V Wade in 1972, and Planned Parenthood V Casey in 1992. Griswold V Connecticut in 1965 was the first Supreme Court case to outline the right to privacy embodied in the Constitution. In it the Supreme Court decided that the guarantees in the Bill of rights embodied a right to privacy. The Supreme Court’s opinion asserts that the existence of a "right of privacy" is bolstered by the Ninth Amendment's protection of rights not detailed in the Constitution, and that the fourteenth amendment’s due process clause embodied those same rights. Furthermore, The Supreme Court held that the first, third, and fourth amendments also guarantee that right. The precedent set by Griswold alone is enough to declare South Dakota’s law unconstitutional.
In addition, the South Dakota legislature ignored Supreme Court precedent in Roe V Wade as well; a landmark Supreme Court decision that upheld a constitutional right to the same privacy rights as Griswold V Connecticut. In Roe, the Supreme Court held that the fourteenth amendment protected a right to privacy, and that the state had no vested interest in outlawing the termination of a pregnancy during the first trimester.
South Dakota ignored judicial precedent a third time when they disregarded the decision in Planned Parenthood V Casey in 1992; which once again upheld Roe, and ignored precedent another four times when the court upheld Roe in Akron V Akron Center for Reproductive Health, Bellotti V Baird, Hodgson V Minnesota, and Lambert V Wickland..
South Dakota’s reckless policy of ignoring Supreme Court decisions undermines judicial authority outlined in the constitution. The Supreme Court has the authority to review laws and declare them unconstitutional. South Dakota’s legislature dismisses judicial authority substantiated in article three sections one and two of the Constitution, which vests all judicial power in the Supreme Court. It also discounts the landmark case Marbury V Madison which holds that “the Constitution is the fundamental and paramount law of the nation, and that an act of legislature repugnant to the constitution is void.” Marbury V Madison grants to the Supreme Court the power to review any act of legislature and determine if it is constitutional. By determining that the Constitution embodies a right to privacy including the right to reproductive freedom is not an example of the Supreme Court overstepping its power, that power is granted to it by the Constitution and the precedent of judicial review outlined in Marbury V Madison. South Dakota’s legislature is overstepping its power when it ignores Supreme Court Precedent; South Dakota’s law attacks a constitutional right upheld seven times by the Supreme Court and clearly violates the constitutional right to privacy.

10 comments:

Cory Heselton said...

First, this isn't the legislature. It's the the public. They are gathering signatures to put forth on the upcoming election ballot as a referendum. Second, any state legislature or the federal legislature can pass any law or propose any amendment they believe to not violate the constitution. It is then up to the Supreme Court to strike it down. Laws are not struck down before they are made because they don't match the Supreme court's ruling and a restriction on abortion is not enumerated in the constitution so states have the right to make laws in this area. If it is challenged and then ruled unconstitutional so be it, but we should never let the people's voices be silenced prematurely. I think South Dakota should get there vote and then I think we can go from there. After all, we are a government of the people.

Owen Carhart said...

Cory, the law I am referring to was passed by the legislature and was struck down by the supreme court in August. Secondly, the law was passed purely as a political test in order to force a Supreme Court showdown on the issue. You are correct though that the public has, since the strike down, pushed to put the measure on the ballot, however their attempts have failed mainly due to the political organizing done by organizations such as planned parenthood. I am however inclined to disagree with your assessment concerning the "peoples voice" Luckily we have bodies such as the Supreme Court to override the tyranny of the majority.

Cory Heselton said...

Sorry, from your posted link, I only saw the reference to the referendum. Thanks for the heads up on that. As for the people's voice part, what I meant by that is I am glad there exist an opportunity for the people to vote on direct issues through referendums like these instead of having the legislature do all of it. Sometimes the people's voice needs to be heard directly and these opportunities are a good thing, no matter the topic.

Owen Carhart said...

I absolutely agree with you on that point! It sparks another important thought. In pittsburgh when I was much younger the City put forth a ballot initiative allowing citizens to choose whether we wanted our tax dollars spent tearing down three rivers stadium and putting in its place a new baseball (PNC Park) and football (Heinz Field) field. Not suprisingly the people overwhelmingly voted no. Interesting that we have two new stadiums isn't it??? I think one of the most ridiculous things about referendums is how they are non-binding. One almost feels like saying why the hell even bother asking me what my opinion is when even if I am in the majority, my elected representatives are still going to go ahead and do what they want anyway. I'm definetely interested in hearing your thoughts on the issue. Thanks so much for commenting, a good banter is always fun!

Cory Heselton said...

Same thing has happened in Massachusetts. We have voted down seat belt laws more than 3 different times and each time the legislature has overturned it.

Owen Carhart said...

ah yes and if I remember correctly isn't/ wasn't there a referendum to get rid of tolls on roads??? How did that end up going?

Stephen McNamee said...

I think this right to privacy is hard to reconcile with other laws. If a national healthcare policy was passed would that violate my right to privacy if it required me to buy it and disclose medical conditions? With the income tax ammendment we decided that we could say that your money isnt private and the government needs to know. How is that reconciled with the right to privacy. It was a right until the government took it away. It is an absurd reading of the constitution. It just isnt consistant.

Owen Carhart said...

not consistant? The government according to the constitution has the power to levy taxes on its citizens. Thus, if the government taxes income it must know what someones income is to be sure they are not avoiding their taxes. Therefore, its not a matter of privacy when it comes to money so much as it is that the government has a vested interest in knowing the amount of money you earn so that it can collect its "share" of the money.
Not sure how you compare this to abortion (seems apples and oranges to me.

Stephen McNamee said...

But Owen, the Supreme Court Held in the Early 1900's multiple times that a personal income tax violated people rights which is why the personal income ammendment was passed. The right to tax in the constitution was refering to levys and stamp taxes, not a personal income tax. So until there was a constitutional ammendment the income tax was a breach of rights until it wasnt. One of the best points I took from Dr. Mott is his belief that a right to be left alone could also be infered from the constitution. But it is to difficult to make the law consistant.

Owen Carhart said...

However, McNamee in the case which my blog discusses (abortion, right to privacy) the Supreme Court has been very specific and consistant.