South Dakota anti-abortion law
(originally bill, HB1215)
Introduction; Passage of the bill
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.
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 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.
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.
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.
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.
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
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:
Protect a woman's right to a relationship with her unborn child.
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:
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."
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."
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."
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
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
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.
John Walker, "Ad blitz coming in abortion campaign. S.D. debate to lure
out-of-state interest," Argus Leader, 2006-MAR-26, at:
Lynda Hurst, "Abortion showdown looming," Toronto Star, 2006-MAR-13,