PIERRE, S.D. (BP)–South Dakota’s Senate passed a bill Feb. 22 that would ban nearly all abortions, moving it one step closer to a direct challenge of the U.S. Supreme Court’s infamous Roe v. Wade decision.
The bill passed the state Senate 23-12, one week after it was adopted by the House of Representatives on a 47-22 vote. It now must pass the House once more — the Senate added a sentence that makes it even more pro-life — before going to the desk of Republican Gov. Mike Rounds, who is pro-life but hasn’t taken a public position. His signature would be historic, marking the first time since the 1973 Roe decision that a state has passed such a sweeping ban on abortion. Pro-choice groups are expected to file an immediate suit if it becomes law.
Supporters of the bill acknowledge that it will be struck down in federal court as unconstitutional, but they hope the Supreme Court eventually will take the case and overturn Roe.
In speaking for the bill, Senate sponsor Julie Bartling, a Democrat, called the unborn child “a separate human being, not a piece of tissue.”
“The unborn child demands and deserves protection under our Constitution and under our state laws, and I believe it’s now time to abolish abortions in South Dakota,” Bartling said.
The bill provides for an exception to save the life of the mother. An amendment that would have provided for an exception for rape and incest failed, 21-14.
State Sen. Brock L. Greenfield, a Republican who voted for the bill, said technology and science have dramatically changed the abortion debate.
“Given the technological leaps and bounds since 1973, we can conclude with 100 percent certainty that upon fertilization a completely new, genetically unique life, with its own DNA fingerprint, is created,” Greenfield, also the director of South Dakota Right to Life, said during debate. “And at approximately 21 days after fertilization, the unborn child’s heart begins beating.”
He then asked the Senate body: “At what point did you become a living human being … worthy of protection under the law?”
In its 1973 Roe decision, the Supreme Court struck down abortion bans across the country, legalizing the killing of the unborn in all 50 states.
The South Dakota bill directly confronts that decision, making it a felony for anyone to perform an abortion. The mother would not be charged with a crime. The language of the bill –- named the Women’s Health and Human Life Protection Act — says that “life begins at the time of conception” and that scientific advances since 1973 have proven that the unborn child is indeed life. The bill says the goal is to “fully protect the rights, interests, and health of the pregnant mother, the rights, interest, and life of her unborn child, and the mother’s fundamental natural intrinsic right to a relationship with her child.” The bill is based on the findings of a task force that studied abortion.
Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, said if he were a South Dakota legislator, he would have voted for the bill.
“The South Dakota legislators cannot let the Supreme Court dictate to them what they think is the right thing to do,” Land told Baptist Press. “They have to follow their own consciences.”
During the end of debate, Bartley read a letter from Norma McCorvey, who was “Roe” in Roe v. Wade. Although then pro-choice, McCorvey now is pro-life.
“She has changed her course,” Bartley said. “She asks us to restore the legal protection of unborn babies.”
Some pro-life groups — including Americans United for Life — have expressed concern with the bill, arguing that its demise could further strengthen the legal precedent for Roe. Of the nine members of the Supreme Court, five are on record as supporting abortion rights.
“Presently there are five pro-Roe justices. That is a fact,” Greenfield said. “But I hold out hope that the court might be receptive of hearing our arguments and upholding this law by the time it makes its way through the judicial process. It is a calculated risk, to be sure, but I believe it is a fight worth fighting.”
The outcome of any case challenging Roe, Land said, will depend on how Justice Anthony Kennedy votes. Kennedy has affirmed Roe in the past but in 2000 voted in the minority with the court’s conservative bloc to uphold Nebraska’s ban on partial-birth abortion — a procedure in which a partially delivered baby is killed when its brains are suctioned.
“Justice Kennedy has proven to be a very unpredictable justice during his tenure,” Land said. “… I think [Chief Justice John] Roberts and [Justice Samuel] Alito are very persuasive collegial types who may have more impact than we dare hope.”
The Senate added a sentence to the bill stating: “The Legislature finds that the guarantee of due process of law under the Constitution of South Dakota applies equally to born and unborn human beings, and that under the Constitution of South Dakota, a pregnant mother and her unborn child, each possess a natural and inalienable right to life.”
South Dakota’s legislature passed similar legislation in 2004, but Rounds issued a “style-and-form” veto, sending it back to the legislature for minor changes. Rounds said then that he agreed with the bill’s intent but was fearful that its wording would lead a court to strike down not only the bill but also the state’s other restrictions on abortion. The House agreed to Rounds’ changes, but the Senate defeated the reworded bill, 18-17, when a senator who previously had supported it switched and voted against it.