Here’s something that has gone largely overlooked in all the media furor over the November elections.  What happens to South Dakota’s ban on abortions could well plant the seeds for a fundamental shift in U.S. policy on abortions.

WESSINGTON SPRINGS, S.D. - Circled around a living room, sipping coffee, five long-acquainted couples grappled with their stark differences on a topic they would have skirted in the past but now cannot avoid — abortion.

Like other South Dakotans, people in this tiny farming town are confronting a historic opportunity on Nov. 7. They’ll sway a tortuous national debate by making a choice no statewide electorate has faced before: whether to approve a sweeping ban on virtually all abortions. . . .

The measure would allow abortions only to save a pregnant woman’s life. It makes no exception for other health concerns, or for cases of rape or incest; a doctor performing illegal abortions could face five years in prison.

The Legislature passed the law overwhelmingly in February, expecting it to be challenged in court and perhaps lead to a U.S. Supreme Court reversal of the 1973 Roe v. Wade decision legalizing abortion. Instead of suing, opponents swiftly collected signatures to force a referendum; the law will be scrapped if voters reject it.

I sincerely hope the ban stays in place and results in a legal challenge that gets the abortion issue in front of the Supreme Court once again so that Roe vs. Wade can be overturned.  Whether or not that will happen is still very much in doubt as polls in the state seem to indicate support for and against the ban being pretty even.

But regardless of what happens in South Dakota, I think people need to appreciate the subtext here.  The South Dakota challenge to Roe isn’t about whether or not abortion should be legal, it is about whether or not a state should be allowed to determine the abortion issue for itself.  A common misconception about the Roe decision is that it made abortion legal.  That’s not quite right.  It didn’t so much make abortion legal as it made it unconstitutional for states to make abortion illegal.

That’s an important distinction.  Pro-abortion advocates are fond of saying that women have a “right to an abortion.” That’s just not true as nowhere in the Constitution is abortion even mentioned.  The Roe ruling was based on some strained interpretation of privacy rights in the Constitution, but that just doesn’t make sense.  Abortion bans don’t violate anyone’s privacy, they simply prevent women/parents from killing their unborn children simply because they are unwanted.  A strict reading of the Constitution dictates that abortion be an issue left up to the states via the 10th amendment.

Unless you’re like me, that is, and feel that an unborn child is a human being from the time of conception rather than a clump of cells until some arbitrary point in the pregnancy.  If you feel that way then the 5th amendment provides all the basis you need for declaring abortion unconstitutional:

nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;

But regardless, if some are going to maintain that unborn children aren’t persons for whatever reason we should at least agree that abortion is a state’s rights issue.  Which is why Roe vs. Wade should fall.  Not so much to end abortion, though I would love that outcome, but to allow more states to do what South Dakota is doing: Decide the abortion issue for itself.

That is, after all, why the founding fathers put the 10th amendment in the Constitution.  So that sticky social issues like abortion (and gay marriage, etc.) could be decided in a number of different ways by the various states to the satisfaction of the greatest number of citizens.