Bravo, South Dakota.

By Mark David Blum, Esq.

I do not understand why everybody is all aflutter about your recent decision to completely ban abortion. Reading your rationale and legislative findings and the text of the actual Bill, I personally think you done well.

Of course, your analysis will not survive strict scrutiny. But, I wonder if the States Rights mandate will trump on an issue of a "basic federal right of privacy". The rule always has been that so long as a door is open somewhere, then government's action is not seen as being overly oppressive.

Below is the text of the new law. I am personally fascinated by some of the remarkable findings of the legislature.

First and foremost is their re-declaration of a principle lost in the period from the Declaration of Independence to ratification of the Constitution. Mr. Jefferson declared life to be "inalienable". Mr. Madison declared life is conditional, subject to due process.

South Dakota has said in this new 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. If it is so, 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 is the absence of available medical care. Life 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. Weird. Self abortions are apparently legal. So too is suicide; who ya gunna prosecute?

Third, and most interestingly, doctors must employ all heroic efforts to save the embryo and the mother ... and will have to 'splain if one of them dies.

Last, since South Dakota has not made it illegal to cross state lines, abortions are still available to its residents.

What I am waiting to see is whether the Supreme Court of the State and of the United States affirms the legislative finding that the South Dakota constitution makes life "inalienable".

Every state must guarantee to its citizens certain constitutional basics. Every state may also grant more rights than those basics and the feds must step aside. The conservative courts have already over rode california's medical marijuana laws. Will the Supremes change their direction now?

http://news.findlaw.com/hdocs/docs/abortion/sdabortionlaw06.html

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:

Section 1. The Legislature accepts and concurs with the conclusion of the South Dakota Task Force to Study Abortion, based upon written materials, scientific studies, and testimony of witnesses presented to the task force, 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. Moreover, 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.

Section 2. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being. No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being.

Any violation of this section is a Class 5 felony.

Section 3. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

Nothing in section 2 of this Act may be construed to prohibit the sale, use, prescription, or administration of a contraceptive measure, drug or chemical, if it is administered prior to the time when a pregnancy could be determined through conventional medical testing and if the contraceptive measure is sold, used, prescribed, or administered in accordance with manufacturer instructions. Section 4. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

No licensed physician who performs a medical procedure designed or intended to prevent the death of a pregnant mother is guilty of violating section 2 of this Act. However, the physician shall make reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of her unborn child in a manner consistent with conventional medical practice.

Medical treatment provided to the mother by a licensed physician which results in the accidental or unintentional injury or death to the unborn child is not a violation of this statute.

Nothing in this Act may be construed to subject the pregnant mother upon whom any abortion is performed or attempted to any criminal conviction and penalty.

Section 5. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

"Fertilization," that point in time when a male human sperm penetrates the zona pellucida of a female human ovum.