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South Dakota anti-abortion law (originally bill, HB1215)

Introduction; Passage of the bill

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From the late 1970s to the late 1980s, there were on the order of 1,500 abortions a year in South Dakota. Since the year 2000, they have averaged about 825 per year; they have declined in numbers every year since 2001. 14

Access to abortions in the state has been "steadily restricted in recent years. In 2005 alone, it passed five laws limiting it, including one that compels doctors to tell women that they would be ending the life of a 'whole, separate, unique human being'." 11 Few doctors would agree with this statement, because if the fetus did become separate from the woman's body -- that is if its umbilical cord became severed -- the fetus and probably the woman would die very quickly. Most pro-choicers would regard the statement as simply untrue. They would probably agree that an embryo and fetus are forms of human life. That is, both are alive and contain human DNA. But they would not agree that the embryo or fetus is "a human being." When human life becomes a human person is, in essence, a religious or philosophical concept about which no consensus exists.

There are no longer any doctors in South Dakota willing to perform abortions. There is only one clinic, in Sioux Falls, SD. It is operated by Planned Parenthood Federation of America. Physicians fly in from Minnesota once a week to perform abortions.

The South Dakota anti-abortion bill HB 1215:

A South Dakota bill, HB 1215, might provide the path by which the Supreme Court could overturn Roe v. Wade. It would criminalize almost all abortions in the state. 8 Only abortions necessary to save the life of the woman would be allowed. It contains no exceptions to permit abortions in the case of rape or incest. It does not allow an exception to prevent serious and/or permanent disability to the woman.

The law requires the doctor to try to "make reasonable medical effort" to save the life of the fetus. If it suffers "accidental or unintentional injury or death" no penalty would be assessed. It is not clear what the consequences would be if the physician intentionally killed the fetus in order to save the life of the woman.

The bill, appears to be ambiguous concerning the legality of selling emergency contraception, commonly called the "morning after pill" or EC. 3

Doctors who perform abortions would face five years in prison and a $5,000 fine.

The bill passed the state House on 2006-FEB-09, by a vote of 47 to 22. 1 The Senate passed a slightly reworded version on 2006-FEB-22 by a vote of 23 to 12. 2 Amendments which would have added exceptions for incest, rape, or the health of the pregnant woman were hotly debated in the Senate. All were rejected. The Senate also rejected a suggestion that voters decide the question in a referendum. An effort to prevent state funding of the expected court battle was also turned down. The bill returned to the House on FEB-24 where it was passed and sent to Governor Mike Rounds (R) who opposes abortion access. He signed the bill into law. 4

The bill provides an exception to allow women to have an abortion if they would otherwise die. However, no exceptions were allowed for cases of rape, incest, or serious danger to the woman's health.

The governor, like the state representatives and senators, has taken an oath to uphold the U.S. Constitution.

bullet Some observers have suggested that this bill is clearly unconstitutional when compared to U.S. Supreme Court rulings over the past few decades. They feel that the governor and legislators are required by their oath of office to reject the bill.
bullet Other observers have suggested that, while the present Justices of the Court would reject the bill as unconstitutional, this situation might not be true in the future. By the time that this bill reaches the Court, there might well be one or two additional strict constructionist Justices on the bench. Thus this bill might be declared constitutional by a future Supreme Court. Legislators are not violating their oath of office, because the Supreme Court might once more allow states to pass restrictive abortion legislation.

According to the Associated Press, Rep. Roger Hunt, (R-Brandon), the main sponsor of the bill, said that the recent appointment of two new members on the Supreme Court and the prospect of one or two more replacements within a few years as older members retire makes early 2006 a good time to start a challenge to the earlier Roe v. Wade decision. He said: "It is important, I believe, at this time in our history to protect the life of the unborn." Hunt said also believes that abortion should be prohibited to:

bullet Protect women,
bullet Protect unborn children, and
bullet Protect a woman's right to a relationship with her unborn child.

He asserted that the state has an interest in protecting the latter relationship.

Rep. Joni Cutler (R-Sious Falls) opposed the bill. She said:

"The vote for this bill is an experiment in the courts, is done at the expense and suffering of those rape and incest victims who'd be forced by the government into pregnancy. The disregard for their pain and suffering ... was apparent to me. This certainly challenges my notion of the land of the free and the brave." (She appears to have used a poor choice of words here. She probably meant that the government would force rape and incest victims into child bearing, not pregnancy. If a woman is seeking access to abortion, the rapist would have already forced pregnancy on her.)

One day before the Senate passed the bill, some legislators commented:

bullet Rep. Pat Haley, (D-Huron): "This Legislature certainly knows everything that it doesn?t want people in this state doing.....We are here to set public policy, and public policy that is devised from the extreme is usually bad public policy."
bullet Joni Cutler, (R-Sioux Falls): "I guess I?ve never claimed to be speaking for God. I know I?m a sinner, and I just do my feeble best as a human being to create reasonable, rational laws that respect everyone?s freedom....The idea that this bill encompasses is a nearly complete ban on any form of abortion, short of someone in the throes of death, is not supported anywhere that I?ve found inside South Dakota or in the country. On some level, it?s probably some group?s national agenda. A lot of this comes from out of state. So much of this seems more relevant to the pulpit than the Statehouse."
bullet Rep. Roger Hunt, (R-Brandon): "You could characterize them as morality bills, but I like to characterize them as maintaining traditional values...It?s important that we do remind ourselves of some of those values because there are so many things now that try to pull our families apart, to impose on our culture ideas and values that are really kind of foreign to our culture."
bullet Sen. Brock Greenfield, (R-Clark): "It?s the duty of the Legislature to intervene when values held by a vast majority of society come under fire. The way I see it, you?ve got people on the other side trying to promote immorality in every way they can."
bullet Sen. Stan Adelstein, (R-Rapid City): "For some of these people, it?s just extremes. It?s all or nothing, and I?ve not seen that before, and I?m disappointed."
bullet Rep. Elizabeth Kraus, (R-Rapid City): "It would be frightening to have a legislator who didn?t have any beliefs. That?s what this body is about. Almost all laws have to do with what?s right and what?s wrong....I?d be worried about a politician who says he?s going to leave his personal values home, ... because that means he?s going to be here with his finger to the wind." 10

Associated Press reported that:

"Hunt said the bill is based on the findings of a legislatively created task force that studied abortion last year. The task force concluded that life begins at conception and each human being is totally unique immediately at the time of fertilization, he said."

Again, this appears to be a poor choice of words. Since the sperm and ovum are normally considered alive and contain human DNA, they are generally regarded as human life before fertilization occurs. We suspect that he means that human personhood begins at conception. This is the main point that divides pro-life and pro-choice supporters. By saying that "each human being is totally unique" at conception, he is apparently referring to each pro-embryo's DNA being unique. Whether a pre-embryo is a "human being," a "human person" or merely a form of "human life" is again a matter on which no consensus appears reachable.

A private benefactor has promised to donate one million dollars to help finance the inevitable lawsuit.


The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. John Walker, "Ad blitz coming in abortion campaign. S.D. debate to lure out-of-state interest," Argus Leader, 2006-MAR-26, at:
  2. Lynda Hurst, "Abortion showdown looming," Toronto Star, 2006-MAR-13, Page A3.
  3. "Bush disagrees with South Dakota abortion ban," Agence France Presse, 2006-FEB-28, at:
  4. "S.D. House Outlaws Abortion," Sioux City Journal, 2006-FEB-11, at:
  5. Monica Davey, "Ban on Most Abortions Advances in South Dakota," The New York Times, 2006-FEB-23, at:
  6. Carey Gillam, "Battle brews as S. Dakota abortion law nears," Reuters News Agency, 2006-MAR-03, at:
  7. Joe Kafka, "Wrong or right? Lawmakers focus on moral matters," Associated Press, Rapid City Journal, 2006-FEB-21, at:
  8. Text of House Bill # 1215 is at:

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Copyright 2006 by Ontario Consultants on Religious Tolerance
Latest update: 2006-OCT-08
Author: B.A. Robinson

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