The Next Step after Roe: Using Fundamental Rights, Equal Protection Analysis to Nullify Restrictive State-Level Abortion Legislation
![handle is hein.journals/emlj56 and id is 1185 raw text is: THE NEXT STEP AFTER ROE: USING FUNDAMENTAL
RIGHTS, EQUAL PROTECTION ANALYSIS TO NULLIFY
RESTRICTIVE STATE-LEVEL ABORTION LEGISLATION
Eileen McDonagh*
I. WHAT IS TO BE DONE?
On March 6, 2006, South Dakota Governor Mike Rounds signed into law
the South Dakota Women's Health and Human Life Protection Act.' This
event drew a great deal of national attention, due in large part to the language
of section 2 of the statute, which stated:
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.2
As attorney Patricia Gray notes, the Act purports to allow an abortion to save
the life of the mother, but even in that extremely restricted instance, the state
directs that the attending physician shall make reasonable medical efforts
under the circumstances to preserve. .. the life of ... [the] unborn child.3
On November 7, 2006, South Dakota voters rejected this legislation in a
referendum by a margin of 56% to 44%. However, the specter of such
extraordinarily restrictive abortion legislation existing at the state level remains
* Ph.D., Harvard University, Government Department; Professor, Northeastern University, Department
of Political Science; Visiting Scholar, Harvard University, Institute for Quantitative Social Science. The
author is the Founder and Director of the Pro-consent Coalition, http://www.proconsent.org, and wishes to
thank Reva Siegel for invaluable advice and Kimberly Jones for research assistance.
1 Women's Health and Human Life Protection Act, S.D. CODIFIED LAWS §22-17-12 (2006) (repealed by
referendum on Nov. 7, 2006).
2 § 22-17-8.
3 Patricia Gray, Controversial South Dakota Abortion Law Overturned by Voters, HEALTH L. PERSP.,
Nov. II, 2006, http://www.law.uh.edu/healthlaw/perspectives/2006/(PG)SDAbortionBill.pdf.
4 Id.](ViewImageLocal?handle=hein.journals/emlj56&div=38&collection=&method=preview&ext=.png&size=3)
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