It’s no coincidence that South Dakotans are well-versed in direct democracy. The state was the first in the nation to adopt an initiative and referendum process in 1898, giving citizens the power to propose and approve laws under which they live.
Petition-fueled constitutional amendments were added in 1972, a more weighty process that some conservative legislators view as a political “end around” for progressive causes in a state where Republicans control the executive and legislative branches.
While initiated measures can be repealed by the state Legislature or referred to the ballot for reconsideration, initiated amendments are entrenched in the state constitution and can only be reversed through court challenges or a superseding amendment.
The stakes are high, in other words, especially on an issue such as abortion, a complex and ongoing legal and moral debate with deep political divisions in South Dakota.
Dakotans for Health, a grassroots organization that pushes for progressive policy change through petition efforts, is collecting signatures for a proposed 2024 amendment that would enshrine abortion rights in the South Dakota Constitution.
If passed by voters, it would supersede a 2005 state trigger law enacted last summer when the U.S. Supreme Court overturned Roe v. Wade with its ruling in Dobbs vs. Jackson’s Women’s Health Organization, leaving it up to the states to determine reproductive rights.
The South Dakota trigger law makes it a Class 6 felony for anyone “who administers to any pregnant female or prescribes or procures for any pregnant female” a means for an abortion, except to save the life of the mother.
Dakotans for Health founder Rick Weiland thinks the time is right for an abortion amendment because of the unsettled nature of South Dakota’s ban. Women now cross the border into neighboring states to obtain abortion pills. And questions remain about the legal interpretation of “life of the mother” in state law.
“With Roe v. Wade, at least there was a framework that provided some reasonable guardrails on both sides of the issue,” Weiland said. “It’s like the wild, wild West right now.”
The petition drive has galvanized an equally passionate opposition movement, with anti-abortion groups wary of allowing the issue to reach the ballot. South Dakotans rejected near-total abortion bans by statewide vote in 2006 and 2008.
A News Watch-sponsored poll of 500 registered voters in July 2022 by Mason-Dixon Polling & Strategy showed that a majority (57%) of respondents support allowing legal access to abortion medications in the state.
Nearly two-thirds (65%) said they support a statewide referendum to determine South Dakota’s laws regarding reproductive rights.
More than three-fourths (76%) of those polled support allowing legal abortion in cases of rape and incest, an exception not currently allowed under South Dakota law.
That public support of abortion rights with restrictions is reflected in other GOP-controlled states.
In Kansas, which former President Donald Trump won with 56% of the vote in 2020, voters overwhelmingly rejected a 2022 constitutional amendment that would have allowed the Republican-led Legislature to tighten restrictions or ban abortion outright, with 59% voting against the amendment.
In South Dakota, the abortion measure’s most public opponent is state Rep. Jon Hansen, R-Dell Rapids.
He serves as vice president of South Dakota Right to Life and co-chair of the Sioux Falls-based Life Defense Fund, which has the stated goal of fighting against “this deadly constitutional amendment at every step.”
Hansen has encouraged volunteers to stand next to Dakotans for Health petition circulators and “explain to the public how radical this amendment is and encourage our fellow citizens not to sign the petition.”
Hansen, a lawyer who serves as Speaker Pro Tempore of the South Dakota House, has also criticized the wording of the proposed amendment, claiming that it’s “far more extreme than Roe v. Wade itself.”
Weiland and others pushed back on that statement by claiming that the amendment uses the same trimester framework as Roe, the landmark 1973 ruling in which the Supreme Court held that the Constitution protected a woman’s right to an abortion prior to the viability of the fetus.
The proposed South Dakota ballot amendment prevents the state from regulating “the abortion decision and its effectuation” during the first trimester (1 to 13 weeks). During the second trimester (14 to 26 weeks), the state could regulate “the abortion decision 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 (when the fetus becomes viable), abortion could be regulated or prohibited except to preserve “the life or health” of the mother.
In public statements, Hansen pointed to a lack of “safety protections” such as parental notification, waiting periods and informed consent.
In South Dakota, before Dobbs, informed consent meant doctors were required to tell patients that women who undergo abortion procedures could experience depression and suicidal thoughts and that the procedure would “terminate the life of a whole, separate, unique, living human being.”
