A Choice Battle, Heavyweights in the Heartland Wield New Strategy

by Sheila Gribben Liaugminas

In the end, the dismantling of Roe v. Wade will not be the work of nine judges in black robes in Washington. The beginning of the end has already arrived, and it has come from a team of life advocates in South Dakota.

You haven’t heard much about this in the mainstream media, and what they have reported has largely been ill-informed. What’s going on in South Dakota has flown under radar, and will likely continue to be underreported. Yet there is so much at stake in the upcoming elections involving life issues. So let this serve as your primer during the heavy campaign season, and be well informed.

Why South Dakota? Why Now?
How did the quiet, sparsely populated, Midwestern Plain state of South Dakota become the frontline of the pro-life movement? Crisis pregnancy center workers there had enough experience with women who suffered devastating trauma after abortion, they launched a legal challenge to the state’s Informed Consent laws to -- at the least -- protect these women’s right to know what an abortion really means.

The longtime promoters and backers of abortion tagged their entire movement with the label “pro-choice”. If it’s all about “choice”, why has the abortion movement been so unwilling to give women one, time and again, when the issue is raised in court? Why the combative resistance to “informed consent”, which is required in any other medical procedure?

The legal team assembled to ask these questions in South Dakota got as far as the state legislature. They asked the right questions of lawmakers who were seriously ready to find answers. In an unprecedented move, the legislature voted by an overwhelming majority to create the South Dakota Task Force to Study Abortion during the 2005 session. They set out to learn about all about the procedure and its effects on the women of that state.

The task force held hearings over several days last September and October. They heard testimony from medical experts, scientists, mental health experts, abortionists, clinic workers and 2,000 post-abortive women. Their findings filled a 71-page report that was delivered to the governor, Mike Rounds, last December.

It is the most thorough, well-documented and well-written report of its kind since Roe.

And it’s staggering to read.

What Women Don’t Know
“The committees in both the House and Senate heard evidence concerning the magnitude of the interests and rights of pregnant mothers who were adversely affected by abortion”, the task force report read in the introduction. “They heard testimony from a number of women who had undergone abortions and who testified how they became depressed and were haunted by suicidal ideation. In every instance they testified about the magnitude of their loss and how that loss adversely affected their lives once they understood that the procedure terminated the life of their existing offspring.”

Some of that personal testimony by these women makes the point that, contrary to what pro-life people may think, many women seeking an abortion don’t yet realize that the child already exists in their womb. They believe the procedure will prevent that child from coming into existence. The South Dakota Task Force made that point up front in its report.

“They typically did not understand that the procedure would terminate the life of a human being, and this lack of understanding was further complicated by the fact that abortion providers had misled them at the time of the abortion. The providers told them that there was ‘nothing but tissue’ inside of them. Many of the women testified or reported to post-abortive counselors that if they had been given accurate information, they would not have submitted to the abortion. Their feeling that abortion providers had misled them compounded their sense of loss, adding to their depression, which often followed the mothers’ realization that they were implicated in the death of their own child.”

Counselors who worked with many of these women verified their testimony.

“The picture that emerged from the record before both the House and Senate committees was that it was common for women to sign consents for abortion without being truly informed”, the report states. “The Legislature finds that pregnant women contemplating the termination of their right to their relationship with their unborn children … including by an abortion procedure, are faced with making a profound decision most often under stress and pressures from circumstances and from other persons, and that there exists a need for special protection of the rights of such pregnant women, and that the State of South Dakota has a compelling interest in providing such protection.”

Moved by what they heard and learned, the legislature passed HB 1166. Among other findings, they issued this: “The Legislature found that as a matter of scientific fact an abortion terminates the life of a whole separate unique living human being.”

And this is only page 5 of a 71-page report.

The strong, obvious and consistent point in the hearings and the resulting findings is that we have been operating in this country with many false assumptions since Roe v. Wade legalized abortion. One is what an abortion actually is. Another is what Roe really said.

Thoroughly Examining Roe
After the introduction, the task force report begins laying out its findings under the heading “The Practice of Abortion Since Its Legalization”. It is mind boggling.

When the U.S. Supreme Court issued its opinion in Roe v. Wade in 1973, “our nation had no experience of any significant duration or extent with legal abortion from which reliable judgments or conclusions could be reached about how legalized abortion would affect the lives, interests, rights, and health of women.”

When it made the decision to legalize abortion, the Roe court did not have the benefit of knowing what we’ve learned from post-abortive women in the 33 years since then.

“Since Roe, approximately 43 to 45 million abortions have taken place throughout the United States”, says the report. “Through the knowledge gained from the advances in science and medicine over the past thirty years, and as evidenced in the testimony of women who have experienced legalized abortion, it is clear that the most essential assumptions made by the Roe Court are incorrect, to the detriment of the women subjected to the procedure.”

Specifically, the report lists “six different incorrect assumptions of fact … that were critical to the Roe decision”. Citing section and line from the Supreme Court ruling, this report details an explicit analysis of Roe.

“First, the Supreme Court assumed that it could not determine the answer to the question of when the life of a human being begins…. Thus, [it] did not affirm, but neither did it deny, that the ‘unborn child’ … is a living human being. To understand this point, and to understand the testimony of the witnesses from Planned Parenthood who testified before the Task Force, it is important to distinguish three separate questions.”

The first question is a scientific one. “Is the human being, from the moment of conception, a whole separate living member of the species Homo sapiens in the biological sense?”

Second, “a moral question: assuming that the answer to the first question is yes, should the life of that human being be accorded the same value, worth, and dignity at all stages of development, i.e., as a blastocyst, embryo, fetus, child, adolescent, and adult. And the third question is a legal one: does the Constitution of the United States protect the rights of human beings at all stages of development before birth?”

In Roe v. Wade, the Court declined to answer the scientific or moral questions. But it ruled that the state could not legally prohibit abortion, launching a 33-year debate over how sound the legal reasoning was behind that ruling. In a 1985 North Carolina Law Review, Justice Ruth Bader Ginsburg wrote “Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court…. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”

And Edward Lazarus, former clerk to Justice Harry Blackmun, author of the Roe ruling, stated “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible....” (FindLaw Legal Commentary, Oct. 3, 2002)

Five More False Assumptions
The task force reports “the Roe Court assumed that there would be a normal healthy physician-patient relationship in which the doctor would impart pertinent information, and that decisions would be made through consultation between physician and patient.” It cites Roe as stating what we now find hardly credible: “All these are factors the woman and her responsible physician necessarily will consider in consultation.” (emphasis added). That consultation in an abortion clinic usually does not take place, and the factors Roe referred to are all the health risks she faces in that procedure.

“Third, the Court assumed that motherhood and child-rearing forced ‘upon the woman a distressful life and future’ and that child-rearing could cause ‘mental and physical’ health problems and ‘distress’ of such a nature that abortion had to be available, and that the absence of legalized abortion was a detriment imposed upon the women by the state.” That is the core and essence of Roe, right there.

The task force report makes an excellent point here. “Nowhere in the Roe decision did the Court mention the distress due to the pregnant mother losing her child to abortion. In fact, there is no mention of the great benefit and joys that the mother-child relationship brings to the mother, or the devastating loss and distress incurred by the mother who loses her child to abortion.” But then, the report acknowledges, we’ve had 33 years of experience with post-abortion trauma.

“Fourth, the Court’s opinion assumed that a decision to have an abortion would be truly voluntary and informed.” Hence, “choice”.

“Fifth, the Court assumed that the abortion procedure was safe and that the risk to the women’s health and life was far greater in carrying the child to full term than in having an abortion.” Yes, Roe actually did assume this, hard as that is to believe now. Reading this task force report is seeing the subject clearly delineated for the first time.

“Sixth, the Supreme Court assumed that the woman faced significant difficulties as a result of a cultural stigma of unwed motherhood.” So, kill the baby. Spare her the embarrassment. And needless to say, many forms of parenthood have become common in the culture these 33 years.

But the Court did miss some intrinsic rights, the report boldly states. For instance, “the Court never mentioned the fact that the pregnant mother possesses a constitutionally protected relationship with her unborn child or the fact that this relationship, protected as a fundamental right, is terminated by the abortion procedure. House Bill 1166 expressly states that this is not only the case, but it required the abortion providers to disclose this information in writing to a woman considering an abortion.”

Informed consent is routine in any medical procedure. Clinics should have been disclosing basic risk information all along. So how do you think abortion providers reacted to this requirement?

Raising the Stakes
They sued. South Dakota Deputy Attorney General John Guhin notified the task force that a preliminary injunction was entered enjoining the enforcement of HB 1166 “in order to preserve the status quo while the case filed by Planned Parenthood challenging the Act is pending in the Federal District Court.”

The task force noted in the report that, when Planned Parenthood went for the injunction to stop the informed consent law from being enacted, the Federal District Court had two options. It faced a conflict between the rights of the abortion providers on the one hand, and the interests of the pregnant mothers on the other, interests that the informed consent bill attempted to protect. “We note that the Court attempted to weigh the harm to the personal rights of the abortion providers against the harms to the interests of the pregnant mothers, and the Court chose to protect the interests of the abortion providers as a way to preserve the status quo while the case is litigated in the District Court.”

Simple questions. Why is Planned Parenthood aggressively resisting the basic requirement to obtain informed consent from women going for an abortion? Why don’t they want to give women all the information available, so they could actually claim that abortion was their “choice”? And why the legal cover from the courts, time and again, over something so obvious and reasonable?

The more the South Dakota task force investigated, the more they wondered the same things. Interestingly, they looked at the fact that both plaintiffs in the landmark abortion cases Roe v. Wade and Doe v. Bolton have gone back to court trying to overturn those original decisions, “because it is now so clear how abortion violates the rights, interests, and health of women”.

In fact, the report states, “Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit, often mentioned as a candidate for the U.S. Supreme Court, wrote a published opinion in which she referred to the evidence provided by Ms. (Norma) McCorvey in the Roe case, including sworn affidavits submitted to this Task Force. Judge Jones stated that this evidence provided new and fresh information never before considered by the U.S. Supreme Court.”

It’s important to understand the magnitude of what happened here. The South Dakota Task Force to Study Abortion asked questions that were never asked before. And information emerged that had either not come out before, or had not been collected in one place. In distilling this onslaught of evidence, they came to some stunning conclusions about the constitutional rights women really do have, and who was violating them.

Truth and Consequences
The South Dakota battle between Planned Parenthood and the crisis pregnancy center plaintiffs is a clash of constitutional claims, between the abortionists’ First Amendment rights to say or not say what they want, and the pregnant mother’s intrinsic, natural, fundamental right to her relationship with her unborn child. This is a right that has been totally ignored. A second right that derives from that one is the mother’s natural intrinsic right to make decisions for her unborn child. And the third right stated in this case is the woman’s intrinsic right to make decisions about her own health based on medical disclosure requirements -- informed consent.

Furthermore, physicians testified that a doctor who has a pregnant mother as a patient has two separate patients -- the mother and the child -- and he has a professional and legal duty to both. The argument presents a new and unique dynamic in the abortion battle. The language is very clear and very stark.

“What we do know, and what we can say,” the report asserts, “is that abortion is unethical and immoral and our support of it as a society wounds all of us. It exploits the mother, destroys her rights, destroys her interests and damages her health, and does so by killing her child. It isolates her in her pain by placing all of the blame for the loss of her child upon her. It kills an innocent human being, and in the process creates the illusion that a mother and her child -- who in reality have interests in harmony with each other -- are somehow enemies.

“Perhaps the greatest cost to society, and our state, is that of our slide into a culture of neglect and abuse of our role as protectors of the natural and intrinsic right of our citizens. We are a nation founded upon principles of equal rights for all and the recognition that the role of government is to protect all human beings in their natural rights…

“The state, the mother, and the child all have interests that justify changing the laws of the state of South Dakota…. In fact, the state not only has an interest, it has a duty to change the law. Because of this duty, the state cannot continue to protect the abortion practice, for the right and duty to preserve life cannot co-exist with a right to destroy it.”

This report was delivered to Governor Mike Rounds at the end of December 2005. By February 2006, the South Dakota Legislature passed an abortion ban bill, HB 1215, the “Women’s Health and Human Life Protection Law.” It was a bi-partisan effort with civil debate on both sides of the issue and both sides of the aisle, all of which should serve as a model for the federal government, especially on the issue of abortion.

The emotion and distortion came out after Governor Rounds signed it into law. It was widely seen as the beginning of the end of Roe. Abortion activists know how airtight it is, so they didn’t challenge it legally. They’re taking it to the people in a November referendum, and trying to sway public opinion against it by distorting what the law says. It’s probably the first time Planned Parenthood has taken any issue to the people.

Women Really Do Want a Choice
A campaign of disinformation about the life protection law picked up all summer and is now gathering steam. Here’s how one story from the Washington Post reported it recently: “‘This has become the focal point in the country for the choice debate,’ said Nancy Keenan, president of NARAL Pro-Choice America, which is channeling cash into the campaign. ‘The stakes are very high, especially for us to win in November and again say America is pro-choice, America doesn’t think politicians should be involved in these private decisions, and enough is enough.’”

We have had 33 years of “choice” rhetoric, and it is a red herring. The South Dakota law came about because these “private decisions” were not made with informed consent. Lawmakers called that bluff in the informed consent 1166 bill. “The Legislature therefore finds that great care should be taken to provide a woman seeking to terminate the life of her unborn child and her own constitutionally protected interest in her relationship with her child with complete and accurate information and adequate time to understand and consider that information in order to make a fully informed and voluntary consent to the termination of either or both.”

That … is choice. A recent survey published in the July issue of the Journal of Medical Ethics found that “women want to be thoroughly informed of all possible risks associated with elective medical procedures, and they generally want as much or more information when it comes to abortion…. The results showed that 95 percent of patients wished to be informed of all the risks of a procedure…. Moreover, in their ranking of the seriousness of complications, mental health complications ranked as very serious, only slightly below the risk of death or heart disease. This finding may be especially important to the abortion debate since recent peer-reviewed studies have linked abortion to increased rates of mental health problems, such as suicidal behavior, clinical depression, anxiety disorders, substance abuse, and sleep disorders. Doctors should anticipate that most women desire information on every potential risk….”

This is exactly what the South Dakota legislature learned in its exhaustive study. So who is really looking out for women? The lawmakers of South Dakota, and the crisis pregnancy center workers who brought their case before them. The “choice” movement is banking on turning the voters against the law before the November referendum.

In late summer, a news blast went out across the media reporting that voters in South Dakota were turning against the law to ban abortion, according to a new poll. Allegedly. But that’s not what the poll revealed. The Associated Press story that was picked up and run almost everywhere was overly simplistic, and betrayed some wishful thinking.

The Argus Leader newspaper and KELO-TV in Sioux Falls hired Washington, DC-based Mason-Dixon Polling & Research to find out how the state’s residents would vote today on the abortion ban. When the results were in, the Argus Leader reported that “a new survey shows that more residents of the largely conservative state oppose a ban on the pregnancy-ending procedure than support it, though that would change if exceptions involving rape and incest were allowed.”

It’s All In the Language
From all the misreporting over the months, it’s clear that the drumbeat of the “no exceptions” message is intended to draw sympathy and support for the abortion activists. But the law does have a rape and incest exception. Either the media do not know that, or they are intentionally misleading the public.

The Mason-Dixon poll asked very convoluted questions about “Referred Law 6” on the November ballot, the life protection law. The wording even took an irrelevant jab at the law toward the end of a confusing set of questions. Breaking down the results takes close attention. But the rest of the media have not done that yet.

Without spin or distortion, here’s the actual breakdown: 39 percent say they would vote “yes” even if there is no exception for rape and incest. Of the 47 percent who say they would vote “no”, and the 14 percent who are undecided (which is collectively 61 percent of the total), 59 percent say they would vote “yes” if there were a rape exception. And 59 percent of 61 percent of the total is 36 percent of the total. Add the original 39 percent of the “yes” vote (without an exception) to that just-mentioned 36 percent of the “no” and “undecided” vote with the exception, and the total comes to 75 percent.

It is astounding that 75 percent of those citizens would vote “yes” on this law, and yet that AP story ran everywhere with headlines like “Poll: S.D. Voters Against Abortion Ban” (CBS News) and “Most oppose abortion ban” (Argus Leader) and “Poll: Voters leaning against South Dakota abortion ban” (Boston Herald), etc…

The real news here is that 75 percent of the voting public in that state want abortion banned. There is a carefully crafted, narrowly defined rape and incest exception designed to prevent fraud on the part of abortion clinics, and prevent exploitation of women.

The facts are being exploited here. There’s an interesting comment in that Argus Leader article quoted above. Brad Coker, the Mason-Dixon Polling & Research firm’s managing director, said that the rape and incest exception was the key factor in this referendum. “That’s the hook the opponents can really build their argument on”, said Coker. “If you’re trying to defeat something that’s on the ballot, you have an easier campaign to run to be successful by raising little seeds of doubt.”

That’s insidious. Tell people the truth, and let them choose. In the end, it really is all about choice after all.

Note: A link to the South Dakota abortion task force can be found on the “About Medicine & Morality” page of the WFF web site: www.wf-f.org/MedicalMoral.html.

Sheila Gribben Liaugminas, a member of the Voices editorial board, was a reporter for Time magazine for many years. Sheila was host of “The Right Questions” on Relevant Radio and “Issues and Answers” news show. She lives in Chicago with her husband; they have two sons, one is a seminarian and the other a college student. Follow updates on this story (and contact Sheila) at www.inforumblog.com.

ADDED 1/29/2007

Here are a couple of links pertaining to that survey referenced in “A Choice Battle”:

http://www.asco.org/portal/site/ASCO/menuitem.a3fb42726842a82627c4c291ee37a01d/?vgnextoid=d70b3608f9958010VgnVCM100000f2730ad1RCRD&index=n&pmid=16877620 <http://www.asco.org/portal/site/ASCO/menuitem.a3fb42726842a82627c4c291ee37a01d/?vgnextoid=d70b3608f9958010VgnVCM100000f2730ad1RCRD&index=n&pmid=16877620>

http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?db=pubmed&list_uids=16877620&cmd=Retrieve&indexed=google <http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?db=pubmed&list_uids=16877620&cmd=Retrieve&indexed=google>

The full text of that Journal of Medical Ethics article is available by subscription only. If someone can get to the article online, and it no longer states what it did explicitly in July, it has been changed.

Here’s the most thorough source of information on it without getting into the Journal itself:

http://www.lifesite.net/ldn/2006/aug/06083003.html