Abortion is likely to be a major topic during the 2022 South Dakota legislative session that begins on Jan. 11, as opponents of the medical procedure see an opportunity to capitalize on recent legal cases across the country that further restricted access to abortion.
The anticipated legislation seeking to restrict abortion rights will come as the future of legal abortion in the U.S. is suddenly uncertain, and as a recent poll by South Dakota News Watch shows that three-quarters of registered voters in the state want abortion to remain legal, and that a solid majority of voters do not support increasing restrictions on the procedure.
For several years, Republican-dominated legislatures in South Dakota have considered and sometimes passed laws that make abortions harder to get, often by requiring more steps to be taken by pregnant women who want to terminate a pregnancy. Many of those laws were incremental in nature and were designed to restrict access to abortion without directly violating the 1973 Roe v. Wade U.S. Supreme Court decision that made abortion legal across the country.
But the anti-abortion movement in the U.S. saw renewed momentum on several fronts in 2021 that have set the stage for pro-life lawmakers in states like South Dakota to potentially push more aggressive legal steps to restrict access to abortion or even, as pro-choice advocates worry, make abortions essentially impossible to obtain.
As of Jan. 6, no bills related to abortion had been filed prior to the upcoming legislative session, according to the state Legislative Research Council. However, Gov. Kristi Noem has strongly signaled that she is likely to put forward measures to further restrict access to abortion, and a leading pro-life advocate in South Dakota told News Watch that anti-abortion legislation is almost certain to be considered in 2022.
“It’s a very exciting time to be part of the pro-life movement in America and especially right here in South Dakota,” said Dale Bartscher of Rapid City, executive director of South Dakota Right to Life.
Bartscher would not reveal specifics of bills he expects will be filed this session, but he said Right to Life is working with the governor’s office and pro-life lawmakers to take advantage of the apparent legal momentum against abortion rights in the U.S.
“It’s our goal to make abortion in the state of South Dakota both illegal and unthinkable,” Bartscher said.
Meanwhile, pro-choice advocates in South Dakota are aware that they may have to fight even harder than usual in 2022 to protect a woman’s right to choose whether to end a pregnancy.
“We know that we’re gearing up for a tough session in terms of reproductive health and reproductive rights,” said Kristin Hayward, manager of advocacy and development at Planned Parenthood in South Dakota. “We know that the overwhelmingly conservative legislators are in a space to make legislation on the rights of reproductive health. So while we have to fight every year, we’re gearing up this year to expect the expected. This is going to be an extremely stressful next couple months in terms of the work that we’re doing.”
Bartscher said possible legislation in 2022 could be modeled after highly restrictive laws passed in 2021 in Texas and Mississippi, which some pro-choice advocates worry may essentially make abortions impossible to get.
In September 2021, the U.S. Supreme Court allowed a Texas law to stand that bans abortion after a doctor can detect a heartbeat in an unborn child, possibly as early as six weeks into pregnancy and before a woman may know she is pregnant. A new Texas law also enables a private citizen to sue abortion providers or anyone involved in helping a woman get an abortion, even someone who drives her to the procedure.
Last month, the U.S. Supreme Court heard oral arguments on a Mississippi law that bans abortions after 16 weeks, and has yet to rule on the matter. But some legal experts saw the court’s questioning as favorable to upholding the Mississippi law, and pro-choice advocates fear the conservative-led court could eventually overturn Roe v. Wade.
After the so-called Texas “heartbeat law” was upheld, Noem, a staunch abortion opponent, said on social media: “Following the Supreme Court’s decision to leave the pro-life law in place, I have directed the Unborn Child Advocate in my office to immediately review the new law and current South Dakota laws to make sure we have the strongest pro life laws on the books.”
During the 2021session, the South Dakota Legislature passed five measures restricting access to abortion, including one prohibiting a Down Syndrome diagnosis as justification for ending a pregnancy.
Noem recently used an executive order to limit women’s ability to get abortion medication through the mail.
In response to questions from News Watch, Noem spokesman Ian Fury did not provide specifics on whether the governor would propose legislation this session or what bills, if any, she may offer.
“Every life deserves protection, and I am committed to taking action to do so,” Noem said in an email to News Watch.
Access to abortion is already severely limited in South Dakota compared with other states.
Abortions are performed only two or three days a month at one location in South Dakota — the Planned Parenthood clinic in Sioux Falls, which also provides a wide range of other reproductive-related services, according to Hayward. Doctors who perform abortions must be flown into South Dakota from neighboring states because there are no local providers.
Hayward said that outside the state Legislature, support is strong for keeping abortion legal in South Dakota and that a majority of the state does not want access to abortion further restricted. She noted that statewide referenda in 2006 and 2008 to ban abortions in most instances were both defeated by South Dakota voters.
“When we brought it to a vote in the state, the people stood with us,” she said.
As the legislative session approaches, Planned Parenthood is mobilizing members of the medical community who support a woman’s right to choose and will seek to bring forward the voices of those in the state who don’t want government to intrude in the lives and medical decisions of pregnant women. The group is also encouraging South Dakotans to contact their local legislators to let them know they do not want access to abortion restricted further.
Planned Parenthood is also willing to pursue legal action on any measures that appear to violate any element of constitutional law, Hayward said.
“This goes down to the rights of people at their core, to be able to have privacy and to have rights to their own self,” she said. “The state of South Dakota needs to trust the women who reside in the state, trust them 100 percent to make decisions for themselves.”
Hayward said pro-choice advocates will aggressively defend a woman’s right to abortion just as they would anyone’s right to any form of medical care.
“It’s not a public health emergency, despite executive orders and language indicating otherwise,” Hayward said. “This is private medical care and a discussion between an individual and their doctor, and if you look at it as medical care, shouldn’t that person have the right to their own privacy in what medication they take or in what treatment they undergo?”
Hayward said conservative lawmakers in the Legislature should stand on their principles of desiring smaller government when it comes to abortion, just as they do on many other issues.
“With this conservative super majority in Pierre, they act like they want smaller government, but what they’re doing is increasing government intervention in your lives,” she said. “What’s the next thing to restrict; what’s the next thing down the pipe?”
POLL QUESTION 1: SHOULD ABORTION REMAIN LEGAL IN SOUTH DAKOTA?
In late October 2021, South Dakota News Watch and the Chiesman Center for Democracy at the University of South Dakota asked 500 registered South Dakota voters about abortion legality. Here are the results, with overall percentages and results broken down by political affiliation.
ABORTION IN SOUTH DAKOTA SHOULD BE:
Legal in all circumstances:
Overall 18.4%
Democrats 44.5%
Independents 18.4%
Republicans 3.4%
Legal in most circumstances:
Overall 19.0%
Democrats 23.9%
Independents 16.0%
Republicans 12.6%
Legal only in certain circumstances:
Overall 38.0%
Republicans 49.2%
Independents 44.8%
Democrats 12.4%
Not legal in any circumstance:
Overall 23.0%
Republicans 33.2%
Independents 19.2%
Democrats 8.8%
Not sure:
Overall 1.6%
Republicans 1.7%
Independents 1.6%
Democrats 1.5%
Mason Dixon telephone poll of 500 random registered South Dakota voters on Oct. 20-23, 2021; margin of error is +/- 4.5%.
Stronger abortion legislation possible in 2022
The current national legal environment regarding abortion could lead to introduction and consideration of more aggressive legislation on abortion in South Dakota this session compared with past years, according to Republican state Sen. Lee Schoenbeck, a Watertown attorney.
Schoenbeck, a pro-life lawmaker who is president pro tempore in the Senate, said changes in the legal landscape surrounding abortion in America may make some lawmakers likelier to vote for more sweeping or more restrictive abortion legislation this session than in the past.
Given the Supreme Court’s upholding of the Texas law and apparent approach to the Mississippi law, South Dakota lawmakers who oppose abortion may back a bill that in the past seemed unconstitutional on its face or that was unlikely to withstand a court challenge.
“In the past, you’ll have legislators that wouldn’t vote for things that are not realistically going to matter; they’ll say, ‘I might agree with you, but you’re not making progress, you’re just making noise,’” said Schoenbeck. “But this session, you’ll have legislators who may say, ‘Look, the court may let us do more,’ so something they might think was a waste of time two years ago, this year they might say, ‘I’ll vote for that today because I think it can make a difference.’”
Bartscher said South Dakota Right to Life is looking at the Texas and Mississippi laws as potential models for new legislation in South Dakota.
“Definitely they’re being looked at as models across the nation; that’s the elephant in the middle of the room right now,” Bartscher said. “We’re looking at that 15-week ban, and we’re also looking at the Texas heartbeat bill.”
Right to Life of South Dakota has spent the past 51 years lobbying to restrict abortion, Bartscher said, and throughout that time has “continued to chip away to make South Dakota the most pro-life state in the nation.”
Bartscher said the anti-abortion movement in South Dakota benefits from having pro-life support from the governor and her entire cabinet, the full congressional delegation and a wide majority of lawmakers. Three legislators serve on the Right to Life board of directors, including Sen. Al Norvstrup, R-Aberdeen, Rep. Jon Hansen, R-Dell Rapids, and Rep. Fred Deutsch, R-Florence.
During the annual legislative session, Right to Life representatives are in daily contact with the governor’s office and in periodic contact with Noem’s office throughout the year, Bartscher said. The group is also working with Mark Miller, the governor’s general counsel and interim chief of staff, who also serves as the Unborn Child Advocate in Noem’s office.
“Currently, we’re working on several pieces of legislation that will be coming this legislative session to strengthen our pro-life values in South Dakota, and whatever pro-life pieces of legislation Right to Life submits, we’ll have the support of our lobbying allies across the state, of our pro-life legislators, and of course, we’ll have the heart of the governor’s office,” Bartscher said.
“As we formulate bills, that may include the Mississippi ban and may include a Texas heartbeat bill, but not necessarily so because there’s other avenues we can go down to continue to strengthen the current laws in the state of South Dakota,” he said.
POLL QUESTION 2: SHOULD ABORTION RESTRICTIONS CHANGE IN SOUTH DAKOTA?
SHOULD SOUTH DAKOTA INCREASE, DECREASE OR NOT CHANGE RESTRICTIONS ON ABORTION?
Increase restrictions:
Overall 24.8%
Republicans 36.1%
Independents 21.6%
Democrats 8.0%
Leave restrictions the same:
Overall 40.2%
Republicans 47.1%
Independents 35.2%
Democrats 32.9%
Decrease restrictions:
Overall 21.0%
Democrats 48.9%
Independents 20.0%
Republicans 5.5%
Not sure:
Overall 14%
Independents 23.2%
Republicans 11.3%
Democrats 10.2%
Mason Dixon telephone poll of 500 random registered South Dakota voters on Oct. 20-23, 2021; margin of error is +/- 4.5%.
Poll results viewed through different prisms
The Mason Dixon poll of 500 registered South Dakota voters was conducted in late October and sponsored by News Watch and the Chiesman Center for Democracy at the University of South Dakota. The error margin was +/- 4.5%.
Asked whether abortion in South Dakota should be legal, 18.4% of respondents said it should be legal in all circumstances, 19.0% said legal under most circumstances, 38.0% said legal in certain circumstances, 23.0% said not legal under any circumstances, and 1.6% were unsure.
On a subsequent question, whether South Dakota should increase restrictions on abortion, 24.8% of respondents said the state should increase restrictions, 40.2% said restrictions should be left the same, 21.0% wanted restrictions decreased, and 14.0% were unsure.
On both questions, poll results indicated generally stronger support for abortion remaining legal among Democrats and Independents compared with Republicans, and more Republicans than Democrats and Independents wanted restrictions on abortion increased.
The poll provided some interesting results among Republicans in a state with a majority of voters registered with the GOP and where the legislative and executive branches are made up of a super majority of Republicans.
A strong majority of Republicans in the poll (61.8%) said abortion should be legal in most or certain circumstances, and only a third of Republicans (36.1%) said they wanted restrictions on abortion increased.
The News Watch/Chiesman Center polling data was interpreted differently by those on differing sides of the abortion debate. Supporters of a woman’s right to choose said the results show that a strong majority of voters want abortion to remain legal and do not want further restrictions enacted on the procedure.
Noem, however, said the polling data indicates strong statewide support for limiting abortion.
“It is encouraging to see that a strong majority of South Dakotans support restrictions on ending the lives of unborn children,” Noem wrote to News Watch after the poll results were provided to her office.
Dale Bartscher
Bartscher said the polling data shows a broad level of support for restrictions or a ban on abortion by Republicans but also among many Independents and Democrats. He said national polls consistently show that 75% of Americans support some level of restrictions on abortion, and that the Right to Life movement has gained traction with younger people.
“We’re a big tent and we welcome them one and all,” he said.
Even if restrictions to abortion are heightened in South Dakota, it is likely that women who want to terminate a pregnancy will still do so, according to a News Watch data analysis in 2021. Using data from health departments in South Dakota and neighboring states, News Watch showed that even when the Sioux Falls clinic closed completely during the early days of the COVID-19 pandemic, many South Dakota women traveled to other states to get the procedures.
State data show that abortions performed in South Dakota fell from about 400 in 2019 to 125 in 2020, a year in which the clinic ceased providing abortions for seven months. But that year, more than 450 South Dakota women traveled to a different state to obtain an abortion, far more than in a typical year, according to data from neighboring states.
Abortion legislation is one of several areas that civil rights advocates expect to face battles in the 2022 South Dakota legislative session.
Jett Jonelis, advocacy manager for the American Civil Liberties Union of South Dakota, said lawmakers and Noem also appear intent on trying to limit the rights of transgendered South Dakota residents and to intrude on what is taught in school classrooms.
Bills have already been filed to ban transgendered girls from participating in female athletics on the high school and collegiate levels and to ban teaching of so-called critical race theory in public schools.
“Unfortunately, I don’t think it will be better this year as far as protecting the rights of marginalized people and the rights of all South Dakotans” are concerned, Jonelis said.
However, Jonelis said she also expects the current political climate in the state will energize those who want to protect personal freedoms and civil rights.
“I think people are going to be fired up, and I think we will be even stronger and more effective this year as well,” she said. “We have tons of community organizations that are focused on education equity, abortion rights and racial and indigenous justice and free speech.”