By Mark David Blum, Esq.

It is true that there are times I find myself in league with the very devil with which I otherwise am locked in daily battle. For example, I stand with the President and many who feel Massachusetts Senator John Kerry owes our troops an apology. Joke or not, what he said is offensive. Had he just said … “oops, I am sorry”, I would not have spent the last twelve hours immersed in the back and forth re-argument of the 2004 election fiasco.

Of greater and more serious import, I must express an opinion in direct dissent to the opinion filed yesterday by the Eight Circuit Court of Appeals. Specifically, this activist Bench invoked the magic of the First and 14th Amendments to the Constitution to strike down a South Dakota Law which significantly restricts a woman’s access to abortion. The Majority looked at the law and held that requiring doctors to lecture a woman about certain aspects of the process of abortion violated the First Amendment.

Undoubtedly I concur with the Majority on the outcome and I certainly stand with them on the question of free speech. In focusing its ire on one aspect of the law, the Circuit Court did great damage to one of the most amazing legislative findings since Thomas Jefferson put his quill to Hemp and penned the Declaration of Independence. In striking down one portion of the Law, the Circuit Court dismantled a Legislative Fact Finding by the People of South Dakota that “Life” is an inalienable right.

It was very important that the Eighth Circuit as well as every judge; State and Federal, always draw a hard line in the sand on the question of personal privacy and the liberty of the individual free of government interference. Giving government one inch toward taking away a basic privacy interest puts us all at risk. A basic presumption is that each State and political entity within these United States was an independent social laboratory to grow and nuture the expansion of enlightenment. The only way this worked was with minimal government interference and involvement in the private lives of citizens. This was Thomas Jefferson’s dream.

I personally have no objection to South Dakota stripping away a citizen’s basic rights to an abortion so long as the citizen has the option to travel to a place where such a procedure is in fact, legal. Similarly and unlike most, I find no personal objection to any gathering of people who choose to live by a certain set of cultural rules; no matter how oppressive or irrational. The only criteria that should ever be applied is whether an individual has the option to leave. After all, with nearly 6 billion of us on the planet and 300,000,000 in the United States alone; if there is a one in a million chance of something happening, there will be three hundred instances just in this Country.

Why it is so important that the Circuit Court and later hopefully the Supreme Court uphold and protect every citizen is because we are not blessed with the freedom of such movement. If South Dakota succeeded in banning abortion, a citizen of Bismark would not be able to travel for an abortion to a neighboring State, Nation, or Indian Reservation without violating a newly enacted Federal Law. The Christian extremists in the Neo Con Republican movement added a plank to their Pandering Ship of State by slamming shut the constitutional right of freedom to move about the nation for the purpose of an abortion.

Working together, these two laws are the first steps toward tyranny. Hopefully, the Supreme Court will hold the line against stealthy encroachment and steady chiseling away at our basic freedoms.

It is a great unknown how the Court will rule. Given the chaotic and disparate decisions by the current bipolar Court; whether a State has the right to grant its citizens more rights than those guaranteed by the Constitution is a toss up. Compare the Oregon Assisted Suicide Law (lawful) with California’s Medical Marijuana Law (unlawful -- violated Commerce Clause).

Despite everything, a big part of me will nevertheless mourn the loss of the South Dakota Law. First and foremost is South Dakota’s re-declaration of a principle lost in the eleven year period between the Declaration of Independence to first signatures went onto the Constitution. Mr. Jefferson declared life to be "inalienable". Mr. Madison declared life to be conditional; subject to due process.

South Dakota has said in their law that, "the Legislature finds that the guarantee of due process of law under the Constitution of South Dakota applies equally to born and unborn human beings, and that under the Constitution of South Dakota, a pregnant mother and her unborn child, each possess a natural and inalienable right to life."

I do not know if the interpretation of the South Dakota state constitution is correct. This issue was not addressed by the Eighth Circuit. If the South Dakota Constitution supports the above conclusion, then in that State, life is inalienable ... meaning it cannot be taken from you ... least of all, by government.

In South Dakota, the death penalty will be unconstitutional. So too will be the absence of available medical care. Housing, clean environment, food, and employment are all critical to the sustenance of “life”. As a real “thing”, “Life” in South Dakota is now something that is mandatory and must be protected. Terry Schiavo would be alive today in a South Dakota hospital.

Second, the legislature did not penalize the mother if she undergoes an abortion. The last line of defense against harming a child is the first person shielded from any criminal exposure. Self abortions are apparently legal which should prevent a lot of parking lot self inflicted womb gun shots.

Third, and most interestingly, doctors must employ all heroic efforts to save the embryo and the mother. In the event of the death of either, the physician will have to explain should either patient – mother or embryo – die.

Last, since South Dakota has not made it illegal to cross state lines, abortions are still available to its residents. Unfortunately, the Federal Government destroyed this one safety net. Perhaps this upcoming election will remedy this most unchristian law.

Still and despite everything, it would have been interesting to see how South Dakota dealt with a return to a basic American concept and organizational principle; the Inalienable Right to Life.

Because as those who most fiercely oppose me constantly remind me, nowhere in the Constitution is there stated the existence of a ‘Right to Privacy’. From that ignorance they posture the absence of everything that flows therefrom. Included in that argument is the repeated argument there is no right to personal privacy and thus no guarantee to abortion.

Generally, I respond to that ignorance with a simple argument. Simply, nowhere in the Constitution is there a stated Right to Life. Anti privacy advocates always harp on a Right to Life as predicating their basis for opposing abortion.

For this reason, the South Dakota experiment was one upon which I was keeping a watch. In my first notice of the passage of the law, I predicted its failure to meet constitutional muster. Yesterday’s Eighth Circuit decision bore that out.

But I repeat now what I said then. Bravo South Dakota. The Inalienable Right to Life is something long since forgotten in our history. Its resurrection was to be one of the few bright stars undimmed in this dark age of neo con Christian madness.

Maybe next time.