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Roe in retreat?

"Roe in retreat?" Continued...

Issue: "Tighter lips?," Feb. 18, 2006

"It would be foolish to not put [the measure] before the voters in a larger general election," said Algin Rhomberg, a spokesman for the initiative.

In other state efforts, a South Dakota proposal would require abortionists and other clinic personnel to treat patients like, well, patients.

South Dakota Rep. Roger Hunt, a Republican, said a 2005 task force studying abortion learned that women seeking abortions at the Planned Parenthood clinic in Sioux Falls receive scant individual attention. Instead, they listen to taped messages before making their abortion appointment and then, after arriving at the clinic, watch videos about the procedure.

Other than placing their legs in the stirrups on command, patients have little interaction with actual physicians, whom Planned Parenthood imports from other states to perform the abortions, according to Mr. Hunt. HB1216 would require that clinic personnel individually explain to women the "psychological and mental post-abortion problems that women who have had abortions encounter," he said.

Ironically, Dave Gerdes of the South Dakota Medical Association decried Mr. Hunt's efforts to protect women's health as "illegal" and "grossly unfair." This though abortion activists in Ayotte, Stenberg, and cases involving the federal PBA ban have invoked "women's health" and the sprawling and ubiquitous "health exception" as reasons to quash pro-life legislation.

In its 48-page Jan. 31 ruling striking down the federal PBA ban, the 9th Circuit spent 15 pages unpacking the "health exception" definition that sprang from Doe v. Bolton, the 1973 companion ruling to Roe, and has since become like an infinite series of legal nesting dolls, permutations without end. In Doe, the high court "defined health in a unique and expansive way that applies only to abortion law," said Mr. Forsythe, and encompasses "all factors," including physical, emotional, psychological, familial, and the woman's age.

If Roe erected a wall around a woman's "right" to abortion, then Doe has proved handy at guarding the gate. Chief Justice John Roberts joined in the unanimous Ayotte decision that bounced New Hampshire's parental-consent law back down to a lower court based in part on its lack of a health exception. And in the 2000 case Planned Parenthood of Central New Jersey v. Farmer, then-Judge Alito ruled with a 3rd Circuit majority that a New Jersey PBA ban was unconstitutional because it lacked a health exception.

Those rulings may signal that pro-life optimism over Roe's imminent demise is premature.

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