Summary
This blog will explore the history and evolution of South Dakota’s abortion ban, with an emphasis on the serious consequences of the law’s vague language on medical professionals. By exploring the 2005 trigger ban, along with 2006, 2008, and 2024 ballot measures, the blog explains why the South Dakota legislature must revisit the ban to clarify the language of the law for medical professionals.
By: Sophie Muggia, JHBL Staffer
Introduction
A woman’s right to choose is a highly contentious issue embedded in many political debates today, as abortion was on the ballot in ten states in 2024.[1] States such as South Dakota, a longtime battleground for abortion legislation, continue to approach abortion conservatively.[2] Throughout history, medical professionals criticized restrictive abortion laws for their vagueness and confusing language, and for not clearly defining exceptions to the laws.[3] Longstanding issues with abortion laws jeopardized patients’ lives and exposed medical providers to criminal liability, because they feared arrests and the legal ramifications of providing abortions and reproductive health services.[4] Specifically, South Dakotans repeatedly proposed new ballot measures, but none clarified the extent of medical professionals’ liability or defined the “life of the mother” exception.[5]
Background
In 2006, when Roe v. Wade (hereinafter Roe) remained the controlling federal abortion law, the South Dakota legislature approved a new abortion law—the Women’s Health and Human Life Protection Act, also known as House Bill 1215.[6] In an effort to compel the U.S. Supreme Court to overturn Roe, the legislation made it a felony for medical professionals to perform abortions, except for those designed or intended to prevent the pregnant mother’s death.[7] Performing an abortion outside the “life of the mother” exception may result in a minimum of five years imprisonment and a fine of $5,000.[8]
Supported by Planned Parenthood and the ACLU, a state-wide ballot referendum in South Dakota allowed voters to decide whether to reject the 2006 House Bill 1215.[9] Fifty-five percent of voters in South Dakota voted “no,” rejecting the state-wide abortion ban.[10] In 2008, abortion returned to the ballot in the form of “Initiative 11,” which again sought to ban abortion with additional limited exceptions for rape, incest, and a similar “life of the mother” exception.[11] The initiative saw similar results as the prior abortion measure, as 55% of voters voted against it.[12]
Today, South Dakota follows a “trigger ban,” which immediately went into effect upon the overturning of Roe.[13] This ban sat dormant while the Roe precedent remained in effect, which led South Dakotan legislators to continue to push abortion laws, but residents of the state continued to vote against them.[14] The “trigger ban” originates from a 2005 law that criminalized the act of helping or assisting an abortion, which made any individual who administered or procured an abortion guilty of a class six felony, except to “preserve the life of the mother.”[15] In South Dakota, a class six felony is punishable by two years in prison, a $4,000 fine, or both.[16]
In November 2024, abortion was on the ballot again in South Dakota, with an opportunity to codify abortion rights in the state constitution and remove the trigger ban’s effects.[17] Drafters of the proposed amendment to South Dakota’s constitution modeled it after the Roe trimester approach to abortion regulation and sought to create the right to an abortion in the first trimester.[18] South Dakotans struck down the amendment, failing to establish constitutional protections for abortion and clarify the confusion medical professionals continue to experience around the law’s exceptions.[19] Thus, South Dakota maintains the 2005 law, holding doctors criminally liable for performing abortions.[20]
Analysis
Legislators in South Dakota must revisit the state’s abortion laws to help medical professionals better understand their requirements during situations in which an abortion is necessary.[21] The current law does not define “protecting the life of the mother,” leaving doctors in difficult and confusing circumstances.[22] The legislature’s only effort to clarify these questions before the 2024 election took the form of a video to medical professionals.[23] The video provoked the opposite effect of its intentions, leaving physicians more bewildered.[24] Physicians should not need to struggle to determine what may incriminate them in accomplishing their job duties.[25]
It is crucial for doctors to understand where the medical line of care is drawn within the narrow exceptions, and for women across South Dakota to know what types of care are available to them.[26] Doctors urged lawmakers to attempt to understand that medicine is not black and white; it is impossible for medical professionals to consistently make judgment calls within the bounds of confusing language that could put their freedom and livelihood at risk.[27] Since voters did not enshrine the right to an abortion in the South Dakota constitution, doctors—and women—are left struggling to understand their role and rights under South Dakota’s abortion ban.[28]
Society trusts doctors with the health of community members, but when doctors feel afraid to use their knowledge and judgement, patients suffer.[29] Consequences of vague language include allowing the court to determine “reasonable medical judgment,” leaving doctors scared to exercise their medical opinions and women unaware of what care they have access to.[30] South Dakotan legislators must revisit and rewrite the language of their abortion statute, or the consequences will continue to affect women and doctors alike.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.
Sophie Muggia is a second-year, day student pursuing a career in criminal prosecution. She graduated from Boston College with a bachelor’s degree in applied psychology and human development in 2022.
______________________________________________________________________________________________________________________________________
[1] See Ana Faguy, The 10 US States With Abortion Questions on the Ballot, BBC (Nov. 5, 2024) https://www.bbc.com/news/articles/c9wjyqqpxwyo [https://perma.cc/HC3P-8E52]. The states with abortion questions on their ballot in 2024 were South Dakota, Montana, Arizona, Missouri, Nebraska, Colorado, Florida, Maryland, North Carolina, and New York. Id.; see also Deirdre Schifeling, Why the Abortion Rights Fight is About More Than Just Who Wins the White House, ACLU (Oct. 17, 2024), https://www.aclu.org/news/reproductive-freedom/abortion-rights-are-on-the-ballot-this-election [https://perma.cc/2ECT-V8PX] (explaining ballot questions).
[2] See The State of Reproductive Rights in South Dakota: Local and Federal Laws and Rulings to Know, Plan. Parenthood Minn., N.D., S.D. Action Fund. (Feb. 5, 2021), https://www.plannedparenthoodaction.org/planned-parenthood-south-dakota-advocate/blog/the-state-of-reproductive-rights-in-south-dakota-local-and-federal-laws-and-rulings-to-know [https://perma.cc/S9TQ-3UWL].
[3] See Alice Olstein et al., Patients Are Being Denied Emergency Abortions. Courts Can Only Do So Much, Politico (Apr. 23, 2024), https://www.politico.com/news/2024/04/23/doctors-abortion-medical-exemptions-00153317 [https://perma.cc/R7JA-97UC]. The legal and medical confusion surrounding abortion laws has physicians across the U.S. pleading with state officials to clarify when they can terminate pregnancies without risking jail time or hefty fines.
[4] See Makenzie Huber, Physicians Feel “Trapped” by SD’s Abortion Trigger Law. They’re Hoping to Change It, S.D. SearchLight (May 13, 2023), https://southdakotasearchlight.com/2023/05/13/sd-physicians-trapped-abortion-ban-trigger-law-health-life-mother-death/ [https://perma.cc/XA5R-GSTB]. Some physicians feel trapped by restrictive abortion laws, emulating feelings that the government is in the exam room with the patient, waiting for the doctor to misstep. Id.; see also Patrick Boyle & Stacy Weiner, Bans On Abortion and Transgender Care Have Criminalized Medicine, Putting Patients and Doctors at Risk, Ass’n Am. Coll. (Nov. 11, 2024), https://www.aamc.org/news/bans-abortion-and-transgender-care-have-criminalized-medicine-putting-patients-and-doctors-risk [https://perma.cc/NB3A-Q2U6] (explaining South Dakota’s abortion ban). A doctor in Ohio who faced consequences for performing an abortion on a ten-year-old who had been raped believes that the vagueness of the laws has devastating consequences. Boyle & Weiner, supra. These laws put physicians in the position of having to contemplate performing the medical care they believe is proper, at the risk they may be charged with a felony if the State deems, they made the wrong decision. Id.
[5] See Lee Strubinger, South Dakota Made a Video To Clarify Its One Abortion Ban Exception to Doctors, All Things Considered, npr (Sept. 6, 2024), https://www.npr.org/2024/09/06/nx-s1-5099487/south-dakota-made-a-video-to-clarify-its-one-abortion-ban-exception-to-doctors [https://perma.cc/T52C-6A85].
[6] See Monica Davey, South Dakota Bans Abortion, Setting Up a Battle, N.Y. Times (Mar. 7, 2006),
https://www.nytimes.com/2006/03/07/us/south-dakota-bans-abortion-setting-up-a-battle.html [https://perma.cc/VVT5-L8J6].
[7] See Mike Pesca, South Dakota’s Abortion Ban, Part 1, Day to Day, npr, at 00:18 (Mar. 30, 2006), https://www.npr.org/2006/03/30/5312059/south-dakotas-abortion-ban-part-1 [https://perma.cc/6JSQ-88S4] (explaining challenge to Roe); see alsoSee Michael Dorf, Does South Dakota’s New Abortion Ban Cross the Line Between “Test” Legislation and Defiance of the Supreme Court?, FindLaw (Mar. 15, 2006), https://supreme.findlaw.com/legal-commentary/does-south-dakotas-new-abortion-ban-cross-the-line-between-test-legislation-and-defiance-of-the-supreme-court.html [https://perma.cc/37BV-3Q55] (describing legal implications of South Dakota’s 2006 law). Legal scholars questioned South Dakota’s decision to challenge the Supreme Court in this way, especially given the oath all constituents partake in — to uphold the constitution. Id.
[8] See Dorf, supra note 7. The law does not explicitly make it a crime for a woman to have an abortion, instead, it criminalizes providing an abortion, directly targeting medical professionals. Id.
[9] See Lee Strubinger, Former Planned Parenthood Director Talks ’06, ’08 Abortion Ballot Question Campaigns, Sdpb (Nov. 4, 2024), https://www.sdpb.org/politics/2024-11-04/former-planned-parenthood-director-talks-06-08-abortion-ballot-question-campaigns [https://perma.cc/J4LG-TSBP]. Victory for Planned Parenthood’s efforts showed legislators that voters don’t want the government controlling their private decisions. Id. Even in such a conservative state, Planned Parenthood was not surprised their efforts succeeded. Id.; see also ACLU Condemns Vote in South Dakota House of Representatives Approving Legislation Aimed at Banning Abortion in That State, ACLU of S.D. (Feb. 15, 2007), https://www.aclu.org/press-releases/aclu-condemns-vote-south-dakota-house-representatives-approving-legislation-aimed [https://perma.cc/VD4Q-E7TD] (expanding on ACLU’s abortion position). The ACLU believed the legislation posed a danger to the health and safety of women in South Dakota. ACLU of S.D, supra; see also Gretchen Ruethling, Peitions Challenge South Dakota Abortion Ban, N.Y. Times(May 31, 2006), https://www.nytimes.com/2006/05/31/us/31brfs-brief-001.html?ex=1161835200&en=64ce6487c3c34624&ei=5070 [https://perma.cc/WRL5-HUNQ] (describing 2024 ballot measure in South Dakota). The ballot measure required over 54,000 signatures to put the ban on the ballot. Ruethling, supra.
[10] See South Dakota Vote Against Abortion Ban, 33 J. Med. Ethics, Ethics Briefings, 123, 123 (2007). The law was originally approved by the state legislature in February of 2006 as a direct challenge to Roe v. Wade. Id.; see also South Dakota Referendum 6, Abortion Ban Measure, BallotPedia (2006), https://ballotpedia.org/South_Dakota_Referendum_6,_Abortion_Ban_Measure_(2006) [https://perma.cc/H3H2-GRE2] (explaining ballot measure).
[11] See Eric Mayer, From The Archive: Votes on Abortion in 2006 and 2008, Keoland.com (May 4, 2022),
https://www.keloland.com/keloland-com-original/from-the-archive-votes-on-abortion-in-2006-and-2008/ [https://perma.cc/RBF6-LLSA]; see also South Dakota Initiative 11, Abortion Ban Measure, BallotPedia (2008), https://ballotpedia.org/South_Dakota_Initiative_11,_Abortion_Ban_Measure_(2008) [https://perma.cc/696C-P25K] (explaining ballot measure);Julie Rovner, South Dakotans Again Consider an Abortion Ban, Morning Edition, npr (Oct. 27, 2008), https://www.npr.org/2008/10/27/95942981/south-dakotans-again-consider-an-abortion-ban [https://perma.cc/3GBT-Q5VJ] (expanding on less rigid approach than 2006).
[12] See generally Rovner, supra note 11 (detailing interview with Planned Parenthood executive regarding South Dakota’s approach to abortion). Though the ban was less rigid, it still led to confusion for doctors. Id. CEO of a Planned Parenthood clinic stated the ban doesn’t clear anything up for doctors, because they will have to be definitively sure that the women fit into the law’s narrow exception, or face felony charges. Id. The CEO went as far as to say, “I have not met a doctor in South Dakota yet who has said he or she is willing to perform an abortion under those circumstances.” Id.
[13] See generally S.D. Codified Laws § 22-7-5.1 (2005) (detailing South Dakota’s 2005 abortion ban). This legislation was set to go into effect in the event that Roe v. Wade was overturned. Id. The legislation bans abortion with only one “life of the mother” exception. Id.; see also Elizabeth Nash, 13 States Have Abortion Trigger Bans – Here’s What Happens When Roe Is Overturned, Guttmacher Inst. (June 2022), https://www.guttmacher.org/article/2022/06/13-states-have-abortion-trigger-bans-heres-what-happens-when-roe-overturned [https://perma.cc/S5ZR-EW2Z] (detailing states with abortion trigger bans for post Roe world). South Dakota’s trigger ban went into effect immediately without any further action. Id.
[14] See generally Strubinger, supra note 9 (explaining Planned Parenthood’s 2006 and 2008 victories in South Dakota). Planned Parenthood was pleased that the people of South Dakota voted no on both ballot measures. Id.
[15] See S.D. Codified Laws § 22-7-5.1 (2005) (defining South Dakota’s abortion law in 2005).
[16] See S.D. Codified Laws § 22-6-1 (2013) (explaining South Dakota’s felony classes and penalties)
[17] See South Dakota Constitutional Amendment G, Right to Abortion Initiative, BallotPedia (2024),
https://ballotpedia.org/South_Dakota_Constitutional_Amendment_G,_Right_to_Abortion_Initiative_(2024) [https://perma.cc/YFV6-BMFQ]. The 2024 ballot measure would have prohibited the state from regulating a woman’s decision to receive an abortion in the first trimester. Id. In the second trimester, the state could regulate abortion but only in way related to physical health of the mother. Id. In the third trimester, the state could regulate or prohibit abortion, except when medically necessary to preserve the life and health of the mother. Id.; see also Strubinger, supranote 5 (detailing South Dakota’s explanation video). One doctor stated that his concerns would be relieved if the November ballot question was approved. Strubinger, supra note 5. Doctors are concerned that their medical decisions are going to be judged by lawyers and judges with no medical expertise, instead of their peers in the medical field. Id.
[18] See Amendment G: Abortion Rights, S.D. Searchlight (2024), https://southdakotasearchlight.com/ballot-measures/amendment-g-abortion-rights/ [https://perma.cc/2FMV-6K75].
[19] See Seth Tupper et al., Abortion-Rights Measure Loses in South Dakota, S.D. SearchLight (Nov. 6, 2024), https://southdakotasearchlight.com/2024/11/06/abortion-rights-measure-loses-in-south-dakota/ [https://perma.cc/5ABF-RR5S].
[20] See South Dakota Doctors and Legal Experts Slam SD Dept. of Health Video on Abortion Ban for Creating More Confusion, S.D. Standard (Sept. 8, 2024), https://www.sdstandardnow.com/home/south-dakota-doctors-and-legal-experts-slam-doh-video-on-abortion-ban-for-creating-more-confusion [https://perma.cc/D5A6-NB6W]. South Dakotan legislators introduced a video to try and help physicians understand the strict laws. Id.; see also Brant Bingamon, Doctors Are Confused and Women Are Dying, Austin Chronicle (Nov. 8, 2024), https://www.austinchronicle.com/news/2024-11-08/doctors-are-confused-and-women-are-dying/ [https://perma.cc/4WNF-U6P6] (explaining women currently suffer from doctor’s confusion on abortion laws). See generally Jack Dura, Abortion Rights Supporters in South Dakota Blast State’s Video of Abortion Laws, Associated Press (Sept. 6, 2024), https://apnews.com/article/south-dakota-abortion-24a5ed4bed5e40145d1dc160183454c5 [https://perma.cc/W7HZ-NKM7]. (explaining backlash to South Dakota’s explanatory video).
[21] See Strubinger, supra note 5. With the failure of November’s ballot question, doctors are back at square one in trying to interpret the limits of the 2005 trigger ban’s “life of the mother” exception. Id.
[22] See id. The ban permits “reasonable medical judgment” in deciding whether or not to provide an abortion but does not set a standard for what that judgment looks like. Id.
[23] See id. The video gives “wishy-washy” answers to doctors’ most pressing questions. Id.
[24] See Dura, supra note 20. The video includes a disclaimer that it is not legal advice, yet it was meant to clarify legal liability for doctors. Id. The video confuses doctors even more, containing words and exceptions not explicitly stated in the law itself. Id.
[25] See S.D. Standard, supra note 20. Doctors believe that until the law is changed to allow doctors to make their own medical judgments and patients to make their own decisions about their bodies, nothing can solve the mess of South Dakota’s abortion ban. Id.
[26] See id. Doctors and patients need clarification on what care they can give and receive. Id. The vagueness is dangerous to both physicians and patients. Id.
[27] See generally Plan. Parenthood Minn., N.D., S.D. Action Fund., supra note 2 (explaining local and federal abortion laws).
[28] See BallotPedia, supra note 11.
[29] See Bingamon, supra note 20.
[30] See id.