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Here's the background and more on South Dakota's effort to pass an abortion ban that legislators hope will result in overturning Roe v. Wade

South Dakota: Front Line of the Abortion Wars

I’m starting to think we should change the signs people see when entering my state. “Welcome to South Dakota, Front Line of the Abortion Wars” has kind of a catchy ring, don’t you think?

South Dakota is well on its way to adopting the nation’s most restrictive abortion law. The unabashed goal is to be the first in the nation with such a law in the hope the inevitable legal challenge will make its way to the United States Supreme Court and the overruling of Roe v. Wade. Yet there’s plenty of back story to this desire.

Two years ago, the South Dakota Legislature passed a bill that made performing an abortion a felony. The only exception was if the abortion was to protect the health of the mother. The bill contained a number of legislative “findings,” including: “the life of a human being begins when the ovum is fertilized by male sperm;” abortions subject women to a “significant risk of severe depression, suicidal ideation, suicide, attempted suicide, post traumatic stress disorders, adverse impact in the lives of women, physical injury, and a greater risk of death than risks associated with carrying the unborn child to full term and childbirth;” and, both the pregnant mother and “the unborn human child . . . possess a natural and inalienable right to life under the South Dakota Bill of Rights.”

Surprisingly, Republican Gov. Mike Rounds, a Roman Catholic, exercised what is known as a “style and form” veto. Rounds wanted changes in the bill to ensure existing abortion laws would not be suspended if and when the legislation was challenged. Although the state House of Representatives approved the suggestion, the state Senate rejected it and the bill died.

Last year, South Dakota legislators introduced no less than six bills seeking to restrict abortion. Most contained provisions that would basically delay their effectiveness until Roe v. Wade was overruled. Of those bills, the Legislature adopted one revising the informed consent applicable to abortions, requiring, among other things, that doctors advise women that the procedure ends the lives of “human beings.” Passage of the measure wasn’t surprising, since it was sponsored by 40 of 70 House members and 23 of 35 Senate members. However, a federal court has at least temporarily blocked the law from going into effect on First Amendment grounds pending a trial on its constitutionality.

In addition, the 2005 Legislature voted to establish a 17-member “South Dakota Task Force to Study Abortion.” The task force was charged with reporting to the Legislature and Rounds by December 2005, including in the report any proposals for additional legislation it deemed advisable.

From the outset, it wasn’t hard to see where the task force was heading. Six of the eight legislators appointed to it sponsored one or more of that session’s anti-abortion bills. And while the head of Planned Parenthood of South Dakota was appointed, so were the ultraconservative husband of one of the leaders of the anti-abortion movement in South Dakota and the co-director of the “Respect Life” office of the Catholic Diocese of Sioux Falls.

The task force met on six days between August 1 and early December 2005. At its last meeting, four members walked out, claiming the report they were presented to adopt was biased and unsupported by the testimony and evidence the task force heard. The task force’s report (PDF file), which was subsequently altered, concluded that “a ban on abortion is required.” Interestingly, a footnote said the task force “has not examined the question of whether any exceptions are necessary – i.e., whether an abortion is ever medically necessary, even to save the life of the mother.” The task force made 14 other recommendations, including that the state: (1) amend the state Constitution to include provisions that provide an unborn child with rights “from the moment of conception,” (2) require that no abortion be performed unless the pregnant woman first receives counseling from a pregnancy care center that does not perform abortions, and (3) clarify the state’s education laws so that abstinence education excludes contraceptive-based sexuality education. With respect to the latter, the task force noted: “It is clear that sexuality education and abortion are undoubtedly connected.”

The task force members who walked out of the final meeting prepared and presented a minority report (Word document). It received little consideration in the legislative process this year. The three members of the House on the task force sponsored a bill they call the Women’s Health and Human Life Protection Act. It begins with the following statement:

The Legislature accepts and concurs with the conclusion of the South Dakota Task Force to Study Abortion, based upon written materials, scientific studies, and testimony of witnesses presented to the task force, that life begins at the time of conception, a conclusion confirmed by scientific advances since the 1973 decision of Roe v. Wade, including the fact that each human being is totally unique immediately at fertilization.

The bill than proceeds to make performing any procedure terminating the life of an “unborn human being” a felony. The bill defines an unborn human being as “an individual living member of the species, homo sapiens, throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and childbirth.” Fertilization is defined to occur when sperm penetrates a female egg. Not only does the bill prohibit abortion from the moment of fertilization, it provides no exceptions to the ban.

The House passed the bill 47-22 on Feb. 9 and the Senate approved the measure 23-12 Wednesday. Both chambers rejected amendments that would have provided provide exceptions for rape or incest or to protect the health of a pregnant woman.

The bill does have to go back to the House because a Senate committee amended it to include a legislative “finding” that the state Constitution’s guarantee of due process of “Dakota applies equally to born and unborn human beings” and the finding from two years ago that under the South Dakota Constitution both a pregnant mother and her unborn child “possess a natural and inalienable right to life.” The House is expected to accept the modification and it is anticipated Rounds will get the bill on his desk as early as the week of Feb. 27. The governor has not given a clear indication whether he intends to sign the bill. The state’s Legislative Research Council has estimated it would cost $1 million to fight the anticipated litigation over the law’s constitutionality. That is double the estimate from the bill Rounds vetoed two years ago.

The anti-abortion members of the task force also introduced a bill that would have required schools in South Dakota to teach abstinence-based sex education without providing instruction in the use of contraceptive drugs, devices, or methods. That bill passed the House but died in a Senate committee. The House did kill a provision of a bill that would have made it a crime for a school employee to refer or accompany a student for family planning services. And, for the second year in a row, the Legislature killed a bill requiring health insurance coverage for contraceptives.

One thing can be said so far about South Dakota’s role in the abortion wars. At least it has been wars of words and paper, not violent acts. Still, the burning desire to see this legislation lead to a court challenge was reflected in one other action during this week’s debate: the Senate rejected an amendment calling for the bill to be submitted to the voters of South Dakota. We shouldn’t feel too deprived, though. After all, thanks to last year’s Legislature, we get to vote on a proposed constitutional amendment banning same sex marriages.

About Tim Gebhart

After 30 years of practicing law to provide shelter for his family, books and dogs. Tim Gebhart is now perfecting the art of doing little more than reading, writing and sleeping.

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