South Dakota is the latest focus of the juggernaut trying to use initiative-and-referendum to pass a state constitutional amendment legalizing abortion-on-demand.  Like Arizona, pro-abortion forces in South Dakota are aiming to put the amendment on the November 2024 ballot, coinciding with the Presidential and Congressional elections.  Signature-gathering is currently underway and will succeed if ten per cent (35,017) of the voters who voted in the last gubernatorial elections sign petitions that must be filed with the South Dakota Secretary of State no later than May 7, 2024.

State constitutional amendments to overturn the possibility Dobbs opened—allowing states to regulate abortion—have come in different shapes and sizes.  Pro-abortion forces seem not to have settled on preferred language and are likely trying to tailor their verbiage to what the political traffic in a state might bear.  For example, the Ohio amendment that goes before voters in November 2023 would even expand its protections to “fertility treatments,” with great potential to be applied to same-sex relationships (e.g., allowing surrogacy).  It is likely proponents of the South Dakota initiative limited themselves to abortion not just to avoid other controversies but to comply strictly with state law limiting a proposed amendment to a single subject.

The proposed language in South Dakota pretends only to codify Roe v. Wade, right down to imitating its trimester system.  The amendment tries to conceal its actual impact, which would be to ensconce abortion-on-demand in the Mount Rushmore State throughout pregnancy up through birth.  It does it by aping Roe’s nominal trimester system while incorporating all the exceptions and loopholes that Roe and Doe v. Bolton contained, openings that nullified the pretended restrictions at particular gestational stages to which the decisions gave lip service.

The text of the proposed amendment reads:

“Before the end of the first trimester, the State may not regulate a pregnant woman’s abortion decision and its effectuation, which must be left to the judgment of the pregnant woman.”

“After the end of the first trimester and until the end of the second trimester, the State may regulate the pregnant woman’s abortion and its effectuation only in ways that are reasonably related to the physical health of the pregnant woman.”

“After the end of the second trimester, the State may regulate or prohibit abortion, except when abortion is necessary, in the medical judgment of the woman’s physician, to preserve the life or health of the pregnant woman.”

According to section one’s absolute deference to the “pregnant woman’s abortion decision” and its silence about the unborn child—who therefore becomes a non-person and non-interest of the State—South Dakota could do nothing regarding first trimester abortions. One might even ask whether the state could even require establishing the unborn child’s gestational age.  That age is relevant to establishing what part of this constitutional amendment applies to the unborn child.  But, if first trimester abortions absolutely cannot be regulated and second trimester abortions only insofar as such regulation serves “the physical health of the pregnant woman,” is it not arguable that documenting gestational age is beyond the state’s competence to require, its nominal Constitutional authorities notwithstanding?

The amendment makes clear the father of the child ceases to have any interest in an abortion.  The same is true of the parents of an unemancipated minor.  None of those parties would have to consent or even be notified of an abortion.

The vague and awkward phraseology “abortion decision and its effectuation” would rule out any laws that are challenged as impeding “effectuation,” e.g., ultrasound requirements, waiting periods, etc.  Spousal and/or parental consent or even notification would also be struck down.  The amendment would nullify any requirements imposed on those carrying out the “effectuation,” i.e., a physician could not be required to have any local hospital admitting privileges.  Indeed, the “effectuation” agent need not even be a doctor: state attempts to limit performing abortions to physicians would almost certainly be invalid under this language.

While the amendment tries to imitate Roe Justice Blackmun, who was enamored of the medical profession, constantly spoke in that decision of “a woman and her physician” or the “attending physician.”  The subtle erasure of the physician, begun in Planned Parenthood v. Casey, would be Constitutionally enshrined by this amendment.  The doctor’s independent judgment is very restricted: his professional practice is limited to “effectuation” of the woman’s “decision,” at best to provide the shield of “medical judgment” to bypass any attempts to limit her “decision” up through birth.

Physicians reappear in sections two and three, which may give South Dakota the chance to limit “effectuation” of abortions to actual doctors.  Section two is also somewhat sloppily written.  While the amendment ostensibly limits the state’s ability to regulate abortion to “ways that are reasonably related to the physical health of the pregnant woman,” what that actually means seems ambiguous.  Abortionists have generally preferred to understand “health” in broad and undefined ways because such understandings typically allow unlimited abortion. So why did the amendment’s drafters insert “physical” before health?  Does that open a door for the state to attempt regulation of abortions that do not have a “physical”-related basis?  Attempts to pursue restrictions along that line might be tested but, in light of the amendment’s overall thrust, would likely be unsuccessful.

It is more likely that the drafters used the term “physical health” to rule out any of what they would pejoratively call “TRAP” (targeted restrictions on abortion providers) regulations that raised the question of the humanity of the unborn.  The section is framed in such a way as to set the expectation that the only allowable state regulations on second trimester abortions are those that create better safety standards for the woman (e.g., sanitary criteria) or which more efficiently result in abortion “effectuation.”

Section three is likely to be misrepresented by abortion proponents as a fig leaf to defend against criticism that the amendment allows abortion through birth (which it does).  The truth is that whatever regulations or prohibitions the state attempts to enact are immediately nullified by a physician’s unreviewable declaration that the abortion serves the undefined “health” of a woman.  What the first half of the sentence giveth, the second half quickly taketh away.

Apart from guaranteeing abortion-on-demand through birth, South Dakota would have to pay for abortions, because its failure to do so regulates the woman’s abortion decision and its “effectuation.”  Because the amendment regards the unborn child as non-existent and having no interests, it treats abortion as just another neutral medical procedure.  As just another medical procedure, the state has no legitimate interest to exclude it from Medicaid, Obamacare exchange, or other public funding support/subsidy, especially if it otherwise covers pregnancy.

One of the very few things this amendment has going for it, in contrast to other initiative-driven amendments currently circulating in Ohio and Arizona, is that it does not explicitly write gender ideology into the state constitution.  At least only “women” in South Dakota get “pregnant,” compared to “pregnant individuals” elsewhere.  Given, however, today’s fluid definitions of “women” (and the ignorance of at least some judges about how to define them), this ostensible concession to biological fact may not survive judicial reinterpretation.

Pro-abortionists are targeting the initiative for the November 2024 ballot.  A simple majority of those voting suffices for adoption.  Unlike Arizona, where abortionists may hope for collateral benefits (e.g., enhanced pro-abortion turnout in a close presidential election or to keep a pro-life candidate out of the U.S. Senate), follow-on effects in South Dakota would likely be few.  In 2020 Republicans carried the state presidentially 61-35% and there is no open Senate seat or governorship in 2024.

South Dakota Right to Life  has focused on getting people not to sign the petitions.  SDRTL’s educational efforts were directed, especially by staffing information booths at county fairs across the state throughout summer 2023, at highlighting the radical nature of the amendment.  The Life Defense Fund, co-chaired by South Dakota State Representative Jon Hansen and Leslee Unruh, is laser-focused on defeating the amendment, leading the “Decline to Sign” campaign.