The Corner

The South Dakota Bill

As much as I’ve enjoyed Ron Bailey’s work over the years, I’m afraid he’s way off base in his analysis of the South Dakota bill on abortion. I think the bill is imprudent, but I’m not against it for the reasons Bailey seems to be.

Bailey argues that the law could be read to have three effects that it is highly unlikely to have.

First, he thinks that the bill could be read to prohibit emergency contraception. The bill prohibits abortion and then stipulates that it does not prohibit contraception. But Bailey thinks that the language on contraception is problematic. He makes a decent case that it is. But I don’t see how it matters, because the language prohibiting abortion, by its own terms, doesn’t seem to cover contraception. Here’s the core of the bill (to which Bailey, to his credit, links):

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.

Emergency contraception, as I understand it, can either prevent conception or implantation. Whether it has the effect of killing an embryo is a matter of chance. So it is not the case that anyone sells or takes emergency contraception necessarily has “the specific intent to cause or abet the termination of the life of an unborn human being.” The person who sells or takes it may be doing something that causes such a termination, but that’s not likely to be the “specific intent” (and would never be provable as such).

Bailey sees this problem and tries to get around it by noting that South Dakota has a law allowing pharmacists not to dispense emergency contraception. So what? Put both laws together, and pharmacists are still free to dispense it and women to buy and take it.

Second, Bailey argues that “this new bill could be interpreted to outlaw in vitro fertilization in which not all embryos are implanted in a patient’s womb. After all, they are by law all ‘unborn human beings.’ It could be argued that the law logically requires that all embryos produced by IVF be implanted even if they are genetically defective.” This is a real stretch. If you keep the embryo frozen, you haven’t killed it. And you certainly haven’t administered a drug or performed a surgery to kill it. If by “logically requires,” Bailey is trying to suggest that a consistent law would require implantation, I think he’s wrong. But if he’s right, then the law’s just inconsistent. Either way, it doesn’t require implantation.

Third, Bailey writes:

The South Dakota anti-abortion statute could have far-reaching effects not only on women’s reproductive choices, but also on the future of much biomedical research nationwide. In a worst case scenario, a U.S. Supreme Court newly packed with anti-abortion justices could use South Dakota’s legislation as a vehicle to overturn Roe v. Wade and declare that embryos under the Constitution are people. Such a ruling would not only outlaw abortion nationally, it would also criminalize human embryonic stem cell and cloning research and impose onerous restrictions on in vitro fertilization.

This is loopily far-fetched. As of this moment, we have no reason to believe that there is a single justice who would rule this way. We know that Justice Scalia is against constitutional personhood for embryos and fetuses. If the Court were somehow to acquire a majority for constitutional personhood, that would be a more momentous event than South Dakota’s passage of this law. (It’s like speculating on the terrible effects this law would have if an asteroid hit the earth.) And if that happened, the Court wouldn’t need the South Dakota law to occasion a ruling. It could issue that ruling in a partial-birth abortion case, or really any abortion case that came before it.

(For the record, to forestall confusion from the usual suspects, I would be against a Supreme Court-imposed ban on abortion because it would be a usurpation of power on the part of the Court, and have said so many times before.)

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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