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The Daily Nightly began on May 31, 2005. As Brian wrote in his first post it aims to provide a narrative of the broadcast day and a window into the editorial process at NBC Nightly News. Brian weighs in every weekday and NBC News correspondents and producers post regularly.

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Why South Dakota won't lead to Roe review

If South Dakota's governor signs the bill passed by the legislature this week, outlawing abortion except when needed to save the life of the mother, it will generate a fight in federal court, which is just what the sponsors intend. They hope their vote will prod the U.S. Supreme Court into revisiting, and ultimately overruling, its 1973 Roe v Wade decision. 

But it's unlikely that such a scenario will play out, and here's why. There's no doubt the governor's signature will spark a legal battle. Planned Parenthood has already announced that it will go to court immediately. Both a federal judge in South Dakota and the federal appeals court will almost certainly declare the state law invalid, because both are bound by the Supreme Court's abortion decisions.

The state would then ask the Supreme Court to hear the case. But the justices are unlikely to do so for several reasons. The court's more liberal members who support the Roe v Wade decision -- Justices Stevens, Souter, Ginsburg and Breyer -- might think it would be good to take the case and strike down the South Dakota law to discourage other states from trying a similar gambit. But can those four be confident that Justice Anthony Kennedy, who has supported Roe in the past, will provide the crucial fifth vote this time? He joined the dissenters six years ago when the court struck down Nebraska's "partial birth" abortion law. Will he be with the Roe supporters this time? 

Conversely, it might seem plausible that the court's known anti-Roe justices, Scalia and Thomas, would want to take the case to strike Roe down. But can they expect Kennedy to vote with them? And are they certain that John Roberts and Samuel Alito are prepared to overturn Roe, after both said during their confirmation hearings that Roe was a precedent worthy of respect? And there's another factor: a decision against South Dakota could forestall further challenges to Roe for several years.

In short, neither side can be confident it would have the necessary five votes to prevail.

A Supreme Court expert, appellate lawyer Tom Goldstein of Washington, D.C., offers another reason the court is unlikely to take the case. While the justices make legal decisions, they are fully aware of the political impact of their actions. Even assuming Roberts and Alito are prepared, someday, to overturn Roe, they might well think it would be perceived as blatantly political to reach out, so soon after arriving at the court, to the first frontal assault on Roe that comes their way. They might worry that such an action would be perceived, Goldstein says, as a payback to the Bush administration.

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COMMENTS

Why does the bible or religion always come up when someone is against abortion? I personally don't think religion should have anything to do with the right to have an abortion, but it should be an ethical question of law. Where does it end, maybe we should end the life of a baby because it is deformed or retarded? Does a baby have a sole when it is conceived or when it is born? That's stupid and has nothing to do with the issue, the issue is, is this a live human being and does anyone have a right to kill it. Personally I think if it has a beating heart is is a live human and no one has the right to kill it including it's mother.

If you are arguing to keep abortion legal by referring to rape, incest, or the health of the mother, you are using the exception as the rule. Less than one percent of all abortions are for those reasons.

And to say that a woman should not be punished for doing nothing wrong is absolutely false. If you have sex and get pregnant, how is it that you suddenly didn't do anything that would get you pregnant, or do anything to put you in such a position?

Think what you want about abortion, and believe what you wish, but using those types of arguments is the wrong way to proceed. Health of the mother issues seem to be the most logical, and, how about this, the South Dakota bill makes an exception for just that.

I am amazed to see the argument that the government has no right to tell a woman what to do with her own body. If this were actually true, then prostitution, drug use, selling a kidney to the highest bidder on Ebay, walking in the middle of the expressway and nudity in public places are just a few samples of behavior that would be legal. These things are all illegal in spite of the fact that most of these examples are also moral (oh my!) issues. There is an untold number of laws that tell us what we can do with our bodies. The thought that a woman has the inherent right to kill her unborn child "because its her body" makes no sense. These people advocate the choice to kill the unborn girl while conveniently ignoring this girl's same right to make any choices about her own body. If you want the right to kill your own baby, be honest about it and say so. Don't pretend that the government is out of line when the reality is there are many laws that tell us what we can and cannot do with our bodies.

Courts with qualified judges (not including Scalia and Thomas) use induction to come to conclusions on whether laws are constitutional. As for the South Dakota law, when you look at it from a different way, it wants to outlaw abortions, but endorse, if not promote rape and incest. It says, looking in an opposite matter, don't worry, you can rape a woman or a family member can have incest with her, so to abort the a fetus, which also has not been defined as a person. Obviously this law does not protect anyone or anything, just South Dakota politicians lining their pockets with everyone's tax dollars, fees and their distorted belief on what a religion is actually all about. You don't see the South Dakota legislature passing laws about stopping priests from molesting children in any hurry.

Afraid to state the obvious Peter Williams? Overpaid from too many pharma commercials asking for a doctor? Very anti-American you are.

Some people want the government to outlaw abortion so that if I get pregnant, I have to carry the baby to term. And there are also many others who think birth control should be outlawed as well. There are certainly people who are making it difficult to get birth control pills, even for Married women! That seems like alot of control for OTHER people to have over what I do with my uterus. I guess the next step will be the government telling me I can only have 2 children? Or one? Or that I can't have any past the age of 35 because I have a higher risk of birth defects? REALLY people, where do we draw the line? Where will you NOT go? The bottom line: I decide how many children I will have and when I will have them. Not you, not anybody else. Just me. It's MY uterus! If you're ready for them to step in and make All your reproductive decisions for you, then go ahead, support your so-called "pro-life" agenda.

I cannot beleive the people that consider themselves civilized and are still Pro Abortion. Pro Abortion is really what Pro Choice means. We live in a society where lives are terminated like getting rid of a headache. I am a 47 year old male that wants to see a return of Men acting like Men and Ladies acting like Ladies. Abortion is not safe, one statistic says that as many as 450 mostly underaged girls die a year from complications to abortion, usually with their parents having no knowledge of the procedure. Planned Parenthood needs to be held accountable. They are a huge money funneling liberal organization that cares NOTHING for the young woman they are butchering or the children they are silencing forever. Meanwhile many couples with means wait on long list to adopt children, some go to Russia or China at extreme expense to adopt. America wake up and do the right thing. I left the Democratic party because of this foolish walk down the "liberal" path.
Sincerely, Mike H, Marion NY

If abortion is an issue for some for moral or religious reasons, that is their perogative. However their opinions are not mine. Nobody is forcing anyone to have abortions. This is a choice that some may chose to make, or chose not to make. Removing the ability to chose is completely disrespectful for the adults in this country who are in the unfortunate position to have to make this decision in the first place.

For those who are so entirely hard on on preventing the death of the unborn, they need to consider that they don't get to have their cake and eat it too. By removing education and resources for birth control, you just opened the floodgates to unwanted pregnancies. If you want less abortions, then we need more sex education in schools and methods of prevention available to the public.

I'll even go one step further. In a perfect world, I would like to a medical option developed and made available for a woman to voluntarily sterilize herself until that time comes when she is ready for a child and wants a child. At which time there is a method of reversing the voluntary sterilization. If this sort of thing were available to the public, you can bet that the level of abortions would dramatically drop.

I am a moderate when it comes to abortion views I guess. I am Catholic and I am therfore against the death penalty, abortion and war. We as humans should never be able to decide when life should be terminated. On the other hand I realize these are all personal beliefs. Women should have the choice of abortion early on, but not later in the pregnancy. When the child becomes viable then we should air on the side of life. Just as we should never put a guilty life to death, nor should we an innoscent life. One of these days when we can accurately measure the emotions of a baby inside a women I think opinions might change. For now we should allow a women do decide up to a certain time 4-5 months into the pregnancy, but not beyond that. At some point the baby gains her own rights to choose life. I do not by the choice argument though. We all have the right to make choices I can use my body as a suicide bomber, but that does not make it right. I could choose to shot someone, but that would not make it right. We always have a choice regardless of what any government says, but that does not make what we choose right or moral.

To all of you anti-abortionists: what if the tables were turned? Imagine that instead of abortions being banned, having children was banned. Think about how you’d feel if you were pregnant, went to the hospital to give birth and instead someone gave you an abortion - regardless of the reasons you had for wanting the baby. Would you fight it? Would it make you angry? Would you want to scream and feel like you were going crazy because you just couldn’t comprehend why ANYONE thought they had the right to tell you what to do with your own body? Well, welcome to my world.

When you take away a woman’s choice, it is for all women, not just the “unmoral” women you ignorantly perceive as the ones having abortions. One day that woman wanting to choose in some regard could be you. We could eventually adopt population control laws, as they have in China, and then when you are forced to have an abortion because you already have too many children, you will know what it feels like to have someone you don’t even know telling you what you can and cannot do with your own body.

There are too many children already on this earth that are suffering because they are not properly cared for. Go find them and focus on making their lives better instead of spending all of your time trying to bring more unwanted children into this world.

Here's my challenge to the "pro-lifers":

If every one of you would pledge to ADOPT the children that woomen would be FORCED to have if Roe v. Wade were overturned, then I'd say fine.

But I know that you will never do that. That would be the truly "Christian" thing to do, but you can bet your bottom dollar that isn't going to happen.

Why would someone not separate the newborn from a clump of cells awaiting to develop. When a woman (could be my granddaughter)is raped or incest occurs, it definitely should be the right of the mother to abort. Only religious fanatics could think otherwise.

19 years ago I was pregnant for the third time in five years, married, with a job that barely covered rent. I grew up in a Catholic household of 10 kids where our parents yelled more than comforted, hit more than cuddled, and where we had to grow up fast so we could take care of the babies that kept coming. I chose an abortion because I did not think that I could give three kids the love and attention I wanted. I didn't think I could be the kind of mother I wanted to be. Yes I have regrets because I love my kids. At the time, though, another pregnancy would have sent me over the edge. I got my tubes tied, over the objections of my parents, and became the best mother I could. I had a choice then, and I want my daughters to have choices, too. I decry the judicial activism that limits freedom of choice.

Middle America states such as South Dakota have long been hemorrhaging young adults to coastal states that promise better economic opportunities and a ticket out of the cultural backwaters. Given that, it’s more than a little curious that South Dakota politicians are now telling the most productive segment of their population that they’re not wanted there. I can’t think of a better way to alienate young women than to rescind their right to choose how they manage their own bodies. Will the last person to leave South Dakota please turn off the lights?

To the individual who feels "unwanted" and would rather have died: You are not unwanted. You have received a wound through your upbringing. But healing is a choice. It is out there. I believe it is with God who does want you. Does God want suffering? No. Yet He allows suffering for reasons we cannot understand. Ultimately it can bring us to Him and to healing. And people, there are plenty of people who would adopt rather than see children killed or abused. It would be better to get rid of all the red tape on adoption procedures. And the reason it is not just about individuals "rights", etc, is because we are not an "island" (Simon & Garfunkle) unto ourselves. What you do in private affects others openly. And, unfortunately, our tax dollars go to support abortion even if we don't believe in it. Pro-abortionists don't just want rights to abortion. They want others to pay for it! If you want the government out of this decision, then take this to its logical conclusion: You take care of the consequences of unwanted pregnancies yourselves; but don't ask the government and our tax dollars to pay for a killing procedure. And, of course, don't ask the government to sanction it, or say it's okay. FYI: Not all Third World countries have abortion on demand. I lived in Brazil for 25 years. They do not have it legalized there. And for those bothered by religious arguements, there are plenty of scientific, psychological, and sociological arguements for preserving the life of the unborn, and avoiding abortion if at all possible. But then if you want to believe what you want because it sounds like "freedom" and "rights" to you it's, in the words of Simon and Garfunkle "All lies and jests, still a man hears what he wants to hear and disregards the rest..." (The Boxer)

A baby is a life, a baby is about as much of "a womans body" as I am right now of my mothers body .Yes, it was made out of part of the womens body, put it is made out of %50 of the males body. It is housed, and nurished by the mother, but is not the mother...if you want to cut off your own finger go for it....but don't cut off mine. What if your mother aborted you...I was once inside my mom...Yes, it's doesn't have a heart yet, it doesn't have a brain yet...but it would if it wasn't aborted. The pre-born child does need his mother, for norishment so if can grow...but so does a baby thats been born it need to be taken care of and nurished...wo what the difference between partial-birth abortion and murder of a newborn? A baby can feel pain..the only thing is that it's not born yet...the only thing diffent is the umbilical cord... I'm glad i wasn't aborted...because I was once inside my mom...So I'm pretty sure that if you don't abort a child...it will be glad too...can you deny a life? What if you had been aborted?

AREN'T ALL LAWS IMPOSING VIEWS? IF A WOMAN HAS A RIGHT TO DO WITH HER BODY ANYTHING SHE WANTS, THEN HOW ABOUT SUICIDE OR HEROIN? NO? DOES A FATHER HAVE A RIGHT TO HAVE SEX WITH HIS TEN YEAR OLD DAUGHTER? NO?

You hit the nail on the head, Allan K. There are 50 separate states in this Union and each state should have the right to create it's own laws. There is no U.S. Constitutional amendment permitting or forbidding a woman's right to an abortion, so the matter should be left entirely to state legislators to decide for the people in their state. For so long, Federal judges and the U. S. Supreme Court have legislated from the bench in a manner that is outside of their right to do so. I don't feel that a person's individual right outweighs the common good, or that a person's right dictates what is right-or-wrong for everyone: If that were so, then slave-holders should have been allowed to keep their slaves in the 1860's. I'm sure we all agree that the slaves of that 1800's had an equal right to life and liberty, and that is why there was a constitutional amendment guaranteeing such. And a war to make it happen. The slaves of that day had no say in the matter - only those citizens with the moral fiber to stand up for what was right. The unborn of this day and age likewise have no say in the matter and is left up to our citizens to determine if those un-born have a right to life. It is the right of individual states to make that decision, whether you agree with it or not. If you live in S. D. and don't like your lawmaker's decision, feel free to move to any of the other 49 states. Heck, there's always Canada. It's none of my business living outside of South Dakota what laws they make, because I respect that state's right to choose what it will. What about you?

First, let me start by saying that it is a woman's decision, her body, HER DECISION. Next, doesn't anyone hear or read the stories or articles in the papers about child abuse..children locked in cages, beaten repeatedly some until they are dead, and others who have been deprived of food and water? Now tell me that you think Roe vs Wade should be reversed?? In some instances, we have 12 year old giving birth to babies and even older women who are just not ready to have a child. Do we really want to hear of more horrible deaths of children..more abuse that makes us drop the paper or change the news station or should we, perhaps, continue to give them a choice? Continue to educate women and girls that they have A CHOICE.

I want to thank almost every writer for their post. The vast majority of you were thoughtful, ethical, intelligent, and honest in your truth.

While so many of you have taken a side on the issue, I am ashamed that I DO NOT KNOW where I stand.

The questions I grapple with are: 1) What is the "right" thing to do? For the fertilized egg? For the mother? For the father? For the extended family? For the community? For the society? 2) What are the long term (positive and negative) consequences of abortion on all of these individuals or groups of individuals? 3) Do we allow our society to abdicate our collective responsibility for each other, by aborting fertilized eggs? 4) How will our God(s) judge us for a choice we democratically sanction or individually choose?

Fortunately, for me, these questions are largely philosophical and speculative. My heart goes out to the individuals, who, yesterday, today, and tomorrow, have to work through these questions in: 1) a timeline set by biology, 2) an ethical context set by theologians and scripture(s), 3) an environment created by a family and community, all 4) within a culture that is angry and divided. It must be wretched for the person(s) who finds him/herself in this circumstance.

If it comes down to it, why would ANY man have the right to say what a woman does with her body. lets be democratic about it. Let every woman in america vote it out, let them decide. No some outdated perception of church doctrine, or ignorant self appointed saviors.

When does a fetus become a separate human being with a separate right to "life, liberty, and the pursuit of happiness"? Regardless of the mother's wishes. Regardless of the fact that he or she was conceived in rape or incest.

Is it the earliest age of any fetus that has survived to date in medical history? How could anyone argue that the fetus is nto aperson when other fetuses the same age have survived into adulthood?

Yet our present laws allow this murder. Look at a fetus in the second trimester. Look at my son who was born this early. Tell me that somehow he was not a human being 1 second before he came down the birth canal and 1 second later he was.

There, a cogent,logical, and compelling argument, and I didn't even say "God" once.

It is important to note that many of the "activist judges" as they have been called are being accused of legislating from the bench. I personally disagree and i maintain that a nuber of these judges are trying to interpret the law in a way that does not go beyond the bounds of the constitution. I believe that the right to privacy, under which the choice for abortion falls, is protected by the tenth amendment. I agree that the courts should strike down this law as unconstitutional and have that right due to judicial review, which is founded in precedent in the case Marbury v. Madison. The issue of abortion fals within the realms of personal freedom of which states have no right to infringe upon. Currently our nation is in the third full generation that has lived with Roe v. Wade. We must consider the the political consequences that a reversal of this case could cause.
if abortion upsets people i understand that but is important to note that nobody is forcing a person to have an abortion, while the law currently pending in S. Dakota would in effect be forcing a woman to have a baby. This does step well beyond the bounds of what i believe the constitution was created for. Also i would like to draw upon the universal declaration of human rights, and note that in article 12 it states that people will have freedom of privacy and shall be protected from attacks on their privacy, of course a number of representatives and senators scoff at this document which is a guiding principle of the united nations.
We must not allow roe v. wade to be attacked in this way. it provides a necessary protection for women and it allows for the population to decide when and how to have a family. The choice must be available. When it comes right down to it this is the problem- should we allow people to make their own choices and deicision when it comes to parenthood or should that choice be denied in all cases except to protect the life of the mother?
i have tried my best to prepare this staement on the basis of law and do my best to stay away from the realm of religion.

Look at a medical book that shows what we are talking about..a tiny human life. Please before any of you say this is choice please look at the real photo's of the unborn. Once you do this you can never say it is just choice or tissue. I find it so sad that so many well meaning and uninformed people just think choice choice choice. I once thought I was pro-choice until I saw the amazing pictures of pre-born babies in my Human anatomy book in college. Wow I was really shocked and amazed. I suggest everyone really take a look at what is the choice. Put aside for a moment all the talk and just look at real medical picture's from the moment of conception until birth. You will have a bigger appreciation for life and at least you can be fully educated on this life and death issue.

I have to admit that the fact that SD is even considering passing this law scares me beyond belief. As a woman, I was taught that this is MY body, therefore MY choice on how I choose to live. What's next? Will we all be forced to observe and participate in nation wide worship? Will I soon find out that my vote (as a woman) doesn't count as much as a mans? Strip a woman of her right to choose, what other rights can she expect to be stripped of next? Wake up people, it's 2006- we have the right to vote, we should have the right to choose as well.

TO THOSE THAT WOULD USE RELIGION TO JUSTIFY A BAN ON ABORTION, please re-think your justification. Do you really want a government that bases legislation on Biblical principles? Shall we outlaw the touching of unclean women when they are menstruating? The planting of two different crops in the same fields? Doing household chores on the Sabbath? And on which day of the week is the true Sabbath so we know when we're not supposed to work -- Saturday or Sunday? These questions all beg the bigger question of which religion's viewpoint of the Bible should the government employ? I guess the answer doesn't matter much as long as it comports with your personal beliefs. But here's something else for you conservative Christians to think about while you are enjoying your resurgence of political power... what if legislation was based on what others view as the "true" word of God, as set forth in a conservative reading of the Qur'an? I'm sure you wouldn't be supporting laws requiring women to be covered from head to toe, and prohibiting them from driving, would you? The answer to that is a clear NO, because you have different religious beliefs. So just as you wouldn't tolerate another religion's prohibitions as a basis for legislation, you should stop forcing your religion's prohibitions on us who don't share in your beliefs.

If you want to argue about abortion, then do it with arguments that we all can appreciate -- the mother's health, potential abuses faced by unwanted children, the state's foster care efficacy, etc. But for everyone's sanity, keep religion out of politics!

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