South Dakota’s Ban on Abortion Looks to the Future

ST. LOUIS —  South Dakota lawmakers last week passed the nation’s most far-reaching ban on abortions, voting to make it a felony -- punishable by five years in prison -- to perform most abortions.

But even supporters of the bill don’t believe it will stop any woman from terminating a pregnancy. They expect a federal judge to halt enforcement of the law before it takes effect.

And that’s precisely the point: to force litigation. They hope their ban will ultimately end up before the U.S. Supreme Court.

“This bill directly confronts Roe vs. Wade,” said Richard Thompson, the president of the Thomas More Law Center, a group based in Michigan that helped write the legislation.

The bill, which Republican Gov. Mike Rounds is expected to sign, declares that life begins at conception and argues that the state has a “compelling and paramount” interest in protecting “all human beings, born or unborn.”

The bill also declares that the state has an obligation to protect an expectant mother’s relationship with her future child, even if she wants to terminate the pregnancy.

Abortion -- referred to in the bill as “the taking of a guiltless human life” -- would be legal only if carrying the pregnancy to term would endanger the mother’s life or cause her “substantial and irreversible physical impairment.” Otherwise, performing or assisting in an abortion could be prosecuted as a Class 5 felony. There are no exceptions for rape, incest, fetal deformities or the mother’s mental health.

“Patients are already calling us, asking, ‘Can I still get an abortion next week?’ They’re trying to figure out what in the world they’re going to do,” said Kate Looby, the state director for Planned Parenthood of Minnesota and South Dakota, which performs about 800 first-trimester abortions a year in its Sioux Falls clinic.

Backers of the South Dakota bill said they needed to enact an unflinchingly tough abortion ban to get the Supreme Court’s attention and force the justices to rethink the legal framework of Roe vs. Wade.

But outside analysts contend that South Dakota’s law is so unconstitutional, it has no chance of surviving early legal challenges, much less getting to the Supreme Court.

“This bill has absolutely no chance of getting even to first base,” said Peter Irons, a political science professor at UC San Diego and author of “A People’s History of the Supreme Court.”

In the 31 years since Roe vs. Wade legalized most abortions, the Supreme Court has considered the legality of state restrictions on the procedure. But it has never signaled a willingness to revisit the basic premise that before a fetus is viable, a woman has the right to decide whether to carry it to term.

Given that history, the National Right to Life Committee, a leading anti-abortion group, says it’s too soon to attempt an all-out abortion ban.

“It’s much more productive to work on getting pro-life politicians elected,” said Mary Spaulding Balch, the group’s national legislative director.

“We’re very pragmatic, and we can count,” she said. “The Supreme Court is the key to this whole issue, and we don’t have the votes there yet.”

Still, South Dakota lawmakers are determined to force the issue. After testimony from women from as far away as California, Maryland and Kentucky -- who tearfully told the legislators that abortions had ruined their lives -- the House voted 54-14 to approve the bill. The Senate approved it by an 18-15 vote Tuesday.

Thompson said the state would argue in court that medical and scientific advances over three decades have shown that a fertilized egg is “a unique human being” deserving of constitutional protection even though it wouldn’t be able to survive outside the womb for many months.

“One of the premises of Roe vs. Wade was that we don’t know when life begins,” he said. “Now we can tell.”

He noted as well that the Supreme Court has overturned its own rulings on other social issues over the years. Last year, the court revisited a 1986 decision upholding state laws criminalizing sodomy. This time, the justices ruled that sex between gays was constitutionally protected. This year, the court announced it would decide whether to abolish the death penalty for juvenile offenders -- a signal that the justices might consider overturning their 1989 decision permitting capital punishment for 16- and 17-year-olds.

“At some point, somewhere, someone has to directly confront Roe vs. Wade,” Thompson said. “When is there ever a wrong time to do what you think is right?”

Abortion-rights advocates said they had never seen a ban as comprehensive as South Dakota’s. But they noted that states are constantly debating how to limit abortions.

Michigan activists, for instance, are pushing a bill that would stipulate a fetus is legally “born” -- and deserving of state protection -- the moment any part of it is expelled from the woman’s body. The bill is designed to prevent so-called “partial-birth abortions,” but critics have voiced concern it could be interpreted to ban other procedures as well.

Last year, more than 40 bills to restrict abortions were introduced in state capitals from coast to coast, according to Erica Smock, a legislative analyst for the Center for Reproductive Rights in New York. She’s noticed a recent flurry of bills that would require abortion clinics to upgrade their facilities to hospital standards, a requirement so expensive that many providers say they’d have to close.

“Anti-choice forces have tried to be creative,” Smock said. Still, she added, South Dakota’s bill stands out. “Usually, these things are done more stealthily.”