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South Dakota anti-abortion law & initiated measure

2008: "Initiated Measure 11"

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State motto:

"Under God the People Rule" was the state motto suggested by the Reverend Joseph Ward, founder of Yankton College, at the 1885 Constitutional Convention. It was adopted as the South Dakota motto, as an element of the state seal in the 1885 constitution and in the 1889 constitution. It is one of four state mottoes that express a religious sentiment. 1


Pro-life groups had persuaded the South Dakota legislature to pass Bill HB 1215 in early 2006. 2 Its intent was to severely restrict access to abortion in the state. Only abortions necessary to save the life of the woman would be allowed. The bill did not include exception clauses to permit abortions in the case of rape or incest. Also, it did not allow abortions needed to prevent serious and/or permanent disability to the woman. The bill was clearly unconstitutional under the U.S. Supreme Court's 1973 Roe v. Wade ruling. Supporters expected a court challenge as soon as the bill became law; they hoped that by the time it had been appealed up the  U.S. Supreme Court, that the philosophical balance would have been tipped in the conservative direction by the Republican administration. The groups' long-term goal was to enable the Court to overturn Roe v. Wade and allow the Legislature of each state to recriminalize abortion if they wished.

HB 1215 was signed into law by Governor Mike Rounds (R) on 2006-MAR-06.

Pro-choice groups raised a sufficient number of signatures on a petition to prevent the law from coming into effect as scheduled in 2006-JUL. The petition required that the public be allowed to vote on the issue on election day in 2006-NOV. The law was overturned by a clear majority of the electorate.

Pro-life groups then launched "Initiated Measure 11" with the same goal of severely restrict abortions, and eventually overturn Roe v. Wade.

Initiated Measure 11:

This was an "initiated constitutional amendment." It was significantly less restrictive than the 2006 law. If approved, the state constitution would have been amended to criminalize all abortions except for those:

bulletPerformed sufficiently early in gestation that ended pregnancies caused by rape or incest, or
bulletNeeded to prevent the death of the woman, or
bulletNeeded to prevent a major health threat to the woman.

Compulsory childbirth would be imposed on women who did not qualify under one or more of these three exceptions. Probably in excess of 90% of all of the women who wanted an abortion in the state would be denied them if the measure passed.

It is important to realize that South Dakota bills, laws, and constitutional amendments only regulate abortion within the state. The state is about 380 miles long and 210 miles wide. A woman with sufficient resources can drive in any direction for a few hours and be in a different state with different abortion regulations.

The amendment would impose a $20,000 fine and/or a ten year jail sentence on anyone who performed an abortion. This made the physicians in the state extremely nervous. In effect, the state would be looking over the doctor's shoulder whenever he performed an abortion; the doctor would have to consider the possibility of a later police investigation during which he or she would have to justify their decision to perform an abortion.

A group called Vote Yes for Life promoted the measure. They had until 2008-APR to collect at least 16,776 signatures on a petition in order to have the constitutional amendment placed on the 2008 ballot. Their stated goal was "... to end abortion used as birth control." 3 They organized the Pastor Urgency Tour from 2008-FEB-25 to MAR-01 in order to rally 300 Pastors to collect signatures in their churches and get the people in their churches to collect more signatures. ..."

A second organization promoting the measure was the Lampstand Project, a coalition of South Dakota Churches. At a press conference, their leaders suggested that most South Dakotans would have voted in favor for the abortion restriction law in 2006-NOV if it had allowed abortions in cases of rape or incest, and when a major threat to the woman's health was present. 4

Opposing them was The South Dakota Campaign for Healthy Families. 5 Their website describes some of the reasons why people were planning to vote NO on the initiative:

bullet"Having an abortion is never an easy decision for a woman. It is a very personal, heartfelt choice that no one else can, or has the right to make."
bullet"I?m old enough to remember what happened to women when abortions were criminalized in an earlier era."
bullet"The people who are promoting this measure admit they want to challenge Roe v. Wade and this is one step in that process. They are using the people of this state for their national campaign, even though this law would place honorable and dedicated physicians at risk because of the medical decisions they make. The unintended consequences of this law could be staggering. ..."

BallotPedia reports that:

"A poll taken in 2007 by a Washington, D.C.-based polling company showed that 75% of South Dakotans believe there are alternative methods short of criminalizing abortion in order to reduce the abortion rate in the state. The poll also showed that 52% did not support the issue being on the ballot." 6,7

A later poll was taken in 2008-OCT, just before the vote, by Sioux Falls Argus Leader. Results were 44% in favor and 44% opposed; 12% were undecided.

Wording of the Initiative:

The ballot on Initiated Measure 11 read:

An Initiative to prohibit abortions except in cases where the mother?s life or health is at a substantial and irreversible risk, and in cases of reported rape and incest.

Attorney General Explanation:
Currently a woman may obtain an abortion during the first 24 weeks of pregnancy. Beyond 24 weeks, abortions may be performed only if necessary to preserve the life or health of the woman.

Measure 11 would prohibit all abortions performed by medical procedures or substances administered to terminate a pregnancy, except for: abortions medically necessary to prevent death or the serious risk of substantial and irreversible impairment of a major bodily organ or system of the woman, and abortions to terminate a pregnancy of less than 20 weeks resulting from rape or incest reported to law enforcement.

When an abortion is performed as a result of reported rape or incest, the woman must consent to biological sampling from herself and the embryo or fetus for DNA testing by law enforcement.

Measure 11 would allow the provision of contraception substances prior to the time pregnancy can be determined by conventional medical testing, or assistance in obtaining abortions in states where the procedure is legal.

If approved, Measure 11 will likely be challenged in court and may be declared to be in violation of the United States Constitution. The State may be required to pay attorneys fees and costs.

YES- A vote ?Yes? will adopt the proposed law.

NO- A vote ?No? will reject the proposed law. 8

The vote:

Leaders in both campaigns made pre-election accusations against the other side. Opponents of the ban complained that VoteYesForLife.com haf received several anonymous contributions, or donations that did not list addresses. Supporters of the ban asset that nonresidents who oppose the ban came to South Dakota and registered to vote but had no intention of remaining in the state as residents. The two sides filed complaints with state officials. 9

The South Dakota Campaign for Healthy Families received about $1.7 million in donations; the Vote Yes For Life campaign was only able to raise about $720,000. 9

The Elections Division of South Dakota reported 167,518 "Yes" votes (44.7%) and 206,477 "No" votes (55.3%). The initiative was defeated. 6

References used:

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

  1. "South Dakota State Motto," NetState, at: http://www.netstate.com/
  2. Text of House Bill # 1215 is at: http://legis.state.sd.us/
  3. "FREQUENTLY ASKED QUESTIONS: The Constitutionality of Initiated Measure 11," Vote Yes for LIfe, undated, at:  http://www.voteyesforlife.com/
  4. "The Lampstand Project - A Coalition of South Dakota Churches Mobilized," 2008-SEP-10, at: http://www.voicescarryblog.com/
  5. The home page of the South Dakota Campaign for Healthy Families is at: http://www.sdhealthyfamilies.org/
  6. "South Dakota Abortion Ban Initiative (2008)," BallotPedia, 2008-NOV-25, at: http://ballotpedia.org/
  7. Amie Newman, "Will South Dakota Attempt to Ban Abortion Again?," RH Reality Check, 2007-NOV-19, at: http://www.rhrealitycheck.org/
  8. "How Measure 11 will appear on the Ballot," VoteYesForLive, 2008-SEP-28, at: http://www.voteyesforlife.com/
  9. "Abortion ban opponents raise, spend nearly twice as much as supporters," The Associated Press,
    2008-OCT-28, at: http://www.mitchellrepublic.com/

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 Home page > "Hot" topics > Abortion > Legal aspects > South Dakota >  here

Copyright © 2009 by Ontario Consultants on Religious Tolerance
Original posting: 2009-FEB-21
Latest update: 2009-FEB-21
Author: B.A. Robinson

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