The Power of South Dakota: 23 State Legislators Set the National Stage

How do big legal changes happen? How can state and local politics affect national policy? What does it mean to change more than thirty years of health care practice?

The near-ban on abortion in South Dakota raises these questions and many more. The state legislature there passed the most significant change to abortion law since the 1973 Supreme Court decision that made abortion legal, Roe v. Wade.

The South Dakota law bans all abortions except when the medical procedure will save the life of the mother. The law does not make an exception for women who have health concerns or are raped or victims of incest. Under the law, doctors who perform abortions could be sentenced to five years in prison.

With a vote of 23-12, South Dakota has set in motion what could be the biggest legal challenge of this generation. The law could easily make it to the Supreme Court, giving Bush appointees John G. Roberts and Samuel A. Alito the chance to vote on abortion rights.

But the court does not likely have the votes to overturn Roe; Supreme Court experts agree that the decision would come down 5-4 in favor of abortion rights if the Court were to vote today.

Split in the movement

That’s why many people who oppose abortion rights say that the South Dakota maneuver is premature. If the case makes it to the Supreme Court and gets voted down, they say, it could be a major setback to the anti-abortion rights campaign. A 5-4 vote would equal one more legal precedent in favor of abortion rights.

But others in the anti-abortion rights movement say there’s no time like the present. They believe the South Dakota law will inspire other state legislatures to do the same, making for a stronger case.

And so far, the law has motivated other states to challenge abortion law. Similar bills have been proposed in Ohio, Georgia, and Tennessee, and at least eight more states - Alabama, Indiana, Kentucky, Mississippi, Missouri, Rhode Island, South Carolina, and West Virginia are considering comparable legislation.

What abortion-rights advocates are doing

Those who want to preserve abortion rights in South Dakota and elsewhere have started gathering signatures for a direct popular vote - a referendum. A referendum would allow the people of South Dakota to decide whether they wish to reject the new law and stop any legal challenge to Roe.

But it’s hard to say what would happen with a referendum in South Dakota. There’s clearly a strong push against abortion rights there, and voters have elected representatives who have strictly limited abortions in the state.

The state of abortions in South Dakota

There is only one abortion clinic in South Dakota. The Sioux Falls branch of Planned Parenthood offers abortion procedures once a week that are performed by one of four out-of-state doctors. Each flies in once a month in order to make abortion possible in South Dakota. No local doctors are willing to do the job because the anti-abortion rights climate in South Dakota would make it extremely difficult to live and practice there.

South Dakota is one of three states that have just one abortion clinic; the others are North Dakota and Mississippi. Women in these states and in many other rural parts of the U.S. travel long distances to find an abortion provider.

If Roe v. Wade were overturned, many more women would have to travel to get abortions. Some states, like New York and California, would continue to offer abortion services, and women from neighboring states would flood in. Therefore, a federal ban by the Supreme Court would acutely affect poor women who could not travel to get an abortion.

In sum

The South Dakota ban will not close the Planned Parenthood clinic in Sioux Falls anytime soon. The referendum process and legal challenges will slow the law’s enactment. And the 23 state legislators who voted for the ban probably knew that. The bill was not an endpoint in the state campaign to change South Dakota abortion law, but the starting point in the larger movement to change federal law.

The situation demonstrates that all elections, local and national, matter. In the abortion rights fight, a group of 23 state legislators in South Dakota started the ball rolling, which may cause a group of nine presidential appointees in Washington D.C. to decide what game we all play.

What do you think?

How do you view the South Dakota ban? How much power should states have to decide abortion rights? How does the abortion question factor in to your vote?

Your input matters

Your representatives in Congress DO care what you think. Especially now -- 2006 is an election year and many representatives will be looking to reconnect with their constituents. Let your congressmen and women know what you think! Give your senators a piece of your mind! To find your reps, click here.

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Posted on: 4/15/2006