South Dakota to reconsider vote on abortion ban

The measure is a version of a 2006 one but has exceptions for rape and incest.
By Nicholas Riccardi
LA Times

October 27, 2008

Two years ago, South Dakota voters overwhelmingly rejected a proposed ban on abortions that proponents had hoped would set up a Supreme Court showdown over Roe vs. Wade.

Next month, the state ballot will include another abortion ban with similar goals -- but observers say this one is far more likely to pass.

The new ballot measure would allow for abortions in the case of rape and incest, exceptions that were not in the 2006 version. The absence of such exceptions is believed to have doomed the earlier version to failure.

"They said we'd gone too far, that we had to have exceptions for rape and incest," said Leslee Unruh, an antiabortion activist who has backed both measures.

This year's measure permits abortion in cases of rape -- provided the mother identifies the violator, a DNA test proves it is his child and the procedure occurs in the first 20 weeks -- and incest.

But opponents contend the initiative does not provide as much leeway as advertised.

"They tried to twist it to make it seem like there are exceptions, but there are not exceptions," said Jan Nicolay, a former state legislator who is co-chairwoman of South Dakota for Healthy Families, which opposes the initiative.

Though the initiative allows an abortion to protect the mother's health, abortion rights advocates say the standard is impossibly high: the threat of a major organ failure. They note that a pregnant woman with breast cancer, for example, couldn't seek chemotherapy or other treatment that could cause a miscarriage because an organ was not immediately at risk.

They also have publicized a memo from attorneys for the state's largest hospital chain that warns Measure 11 "will require a physician to choose between possibly committing a felony or subjecting a pregnant woman to a higher degree of medical risk than what would otherwise be clinically desirable."

The attacks frustrate Unruh, who hoped for a straightforward discussion of whether voters wanted unfettered abortion access. "The South Dakota law is a reasonable law," she said.

But the continuing abortion battles in South Dakota show that abortion is not a black and white issue, said Elizabeth T. Smith, a political science professor at the University of South Dakota. "The average citizen doesn't have a straight up or down vote on abortion," Smith said. "There are gradations of support based on different circumstances."

South Dakota already has what are considered the most restrictive abortion laws in the nation, including a requirement that doctors warn that abortion can lead to increased risk of suicide and a mandatory 24-hour period between the time a woman requests an abortion and has one.

There is only one abortion clinic in the state, in Sioux Falls, and Planned Parenthood flies in physicians from Minnesota because no doctors in South Dakota will risk regularly performing the procedure.

Unruh said her campaign's polls showed Measure 11 slightly ahead. A poll released Sunday by the Sioux Falls Argus Leader/KELO-TV showed a dead heat, with voters divided 44% to 44%. Both sides agree the tally will be closer than in 2006, when voters rejected, 56% to 44%, an abortion ban signed into law by Republican Gov. Michael Rounds.

In allowing the exceptions, the measure's backers have had to deal with some dissension in the antiabortion movement. Some argue that if abortion is truly murder, there should be no exceptions other than for the life of the mother.

"Our biggest battles are with our own people," Unruh said.

The proposed ban also aggravates a rift among antiabortion groups over strategy. Some groups prefer to incrementally increase restrictions on abortion and appoint more sympathetic judges. Unruh and her backers hope abortion rights groups will sue to overturn the measure if it passes, forcing the U.S. Supreme Court to reconsider Roe vs. Wade.

Even if the effort fails again, Unruh said activists would try again at the ballot box in 2010.

"I'm not tired," she said. "We're going to continue. We believe in this."