This interview originally aired on "In the Moment" on SDPB Radio.
South Dakotans were the first Americans to go to the ballot box to vote on abortion. In 2006, state legislators passed a law with the intent to challenge the U.S. Supreme Court decision in Roe v. Wade.
Seventeen thousand voters signed petitions to refer the new law, signed by then-governor Mike Rounds, to the people.
When the votes were tallied, the people overturned the law, which would have banned abortion in the state without exception.
Abortion returns to the ballot in the post-Roe era with Amendment G. Voters will decide whether or not to enshrine certain abortion rights in the state constitution.
Michael Card, Ph.D., is professor emeritus of political science at the University of South Dakota. He joins us for a brief history lesson about abortion politics in South Dakota.
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The following transcript was auto-generated and edited for clarity.
Michael Card:
As long ago as 1877, the territorial legislature outlawed abortion. And at that time, they set a penalty against either presenting yourself for an abortion or for a physician or any person to conduct the abortion.
It involved a fine of about a thousand dollars, which in today's dollars is well over $30,000, and up to a year in jail or the territorial prison.
The same bill also called for a prohibition against infanticide, killing an infant up to two years of age. Interesting to mix the two because we see a little bit of that today with the discussion that says that if we allow abortion to be legal, some opponents of that are saying that after the baby's born, they can be aborted.
No, that's infanticide, that's murder. And that all 50 states, the District of Columbia and, I believe, even federal law says that that is the crime of murder.
Lori Walsh:
Alright, so 1877, this is outlawed. 1973 is when the Supreme Court issues the Roe v. Wade decision.
Michael Card:
Right. In 1973, the U.S. Supreme Court laid out a decision on, I believe, Jan. 22 that provided for a right to privacy based on the 14th Amendment to the U.S. Constitution that provided for equal protection such that men and women should be subject to the same laws.
There were issues with that all along, but state laws prohibiting abortion became null and void and unenforceable because they violated the U.S. Constitution.
Lori Walsh:
South Dakota is so upset about this decision that in 1979 they will rescind the ratification of the Equal Rights Amendment.
Michael Card:
But it was also the case that as late as 1978, the Southern Baptist Convention had a plank supporting abortion. A lot of this changed in the political realm as the changeover from southern Democrats becoming Republicans. And that really took place between about 1978 and Ronald Reagan's election in 1981.
So we saw one of the great flips of partisanship about the same time and that flip has basically led to the Republican party having an anti-abortion plank in their party platform up until this year.
Lori Walsh:
Interesting. In the interest of time, I want to jump ahead to 2004, 2005 and 2006 and this idea that there are efforts to send a bill from South Dakota to the Supreme Court that will cause Roe v Wade to be overturned.
But, of course, that bill has real practical implications politically in the state, but then also in people's lives because of the way that they're going to craft it. Bring us to that time a little bit and tell me where we need to start to understand what was happening in the early aughts in South Dakota regarding abortion.
Michael Card:
Again, as we saw at the 1979 recession of the Equal Rights Amendment. We saw in 1991 House Bill 1126 prohibited the use of abortion as a means of birth control. And along with that it did not pass.
It was a very close vote. I believe it was one vote in the Senate prohibited the bill from at least going to Gov. Mickelson for signature. So then we start to jump forward and we see that abortions are still being performed in here in Sioux Falls.
There are multiple right-to-life organizations against abortion. Right to Life is one of them. I believe Eagle Forum is another.
Representative Matt McCaulley brought forth a bill in 2004 that was not well received by the majority of the anti-abortion groups because the two sides of the issue said we don't want this decided if we're going to lose. The sole purpose to have a bill pass was to bring it in front of the U.S. Supreme Court.
And they were afraid that if they brought this bill that they would get a negative ruling that it wouldn't be upheld.
Lori Walsh:
In other words, what I'm hearing you say is that some of these people are like, no, we don't want this legislation yet because we don't want to take it to the courts and get an outcome that we don't like.
It's not always easy to get people who philosophically agree on something to decide what the language of the bill should be and what the bill should do, in other words,
Michael Card:
And what the bill would do then and how that would be seen by the court system. And the view was is it's not going to make it. And so we actually saw groups with the same end result in mind, not agreeing upon the means, and they split the majority Republican votes in terms of getting the bill passed.
Lori Walsh:
This is the impact of politics on our daily lives.
Michael Card:
Yes. And why we need to pay attention to state and local politics.
Lori Walsh:
Exactly.
In 2005, there's going to be a task force. This is an abortion task force. The recommendations are widely criticized as not being founded in any kind of science. They're more philosophical or political.
But in 2006, we get to a law that actually passes and it is an abortion law with no exceptions for rape and incest.
Why did the lawmakers not put in exceptions for rape and incest in 2006? Because they did it for a reason.
Michael Card:
One of the largest reasons was they wanted to be consistent in their messaging. And to say that abortion is bad, it's evil. In all of its manifestations, it would be murder.
And so beyond that, there's other reasons, but that's the primary one.
Lori Walsh:
Such as: You don't believe in any exceptions.
Michael Card:
We don't believe in it. Yeah. We just don't believe in exceptions. And there are many who believe that the lack of exceptions led to the vote of basically 55-45% against that.
Lori Walsh:
So to be clear, lawmakers pass it. Gov. Mike Rounds signs it. Seventeen thousand people put their name on a petition to refer the law to the voters. And then, in November, it fails.
Michael Card:
Right. They voted no. And that's a veto referendum. And so the people actually vetoed the legislation that had passed the Legislature and was signed into law by Gov. Rounds. So it did not go into effect.
The movement then became, well, let's put some of these broadly-defined exceptions in place. Many terms were not defined, and they're still not defined today. What does it mean to protect the life of the mother?
Lori Walsh:
That was interesting to me because as recently as this legislative session, we're talking about, oh, what does it mean to protect the life of a mother? Are we talking about her mental health? Are we talking about organ damage? What are we talking about here?
And then as I went back for research and watched Denise Ross's documentary "Unplanned Democracy." They're having those arguments then, too. What exactly does this mean? It's not very clear.
I don't know why I was telling myself the story that it was a new question, but it was not, by any stretch, new. We are re-litigating publicly a lot of things that people talked about before as we look at an amendment on the ballot now.
But let's not forget the reason that this amendment is on the ballot is because of the Dobbs decision. Help us understand. We talked about 1973 Roe v. Wade and now that is not the umbrella under which we live anymore.
Michael Card:
Right. The Roe v Wade basically permitted abortion under almost any context. And what we saw was a number of other U.S. Supreme Court decisions that allowed states to put limitations. These included required waiting days before you could say, I'm presenting myself for this medical procedure or an abortion because many people don't like the other side's terms. And you would have to wait a certain number of hours or days or you may have to watch a video, you may have to receive counseling on having adoption for a birthed baby and the like. And a number of other requirements.
Lori Walsh:
You may have to go back to the clinic one time, two times, three times in South Dakota.
Michael Card:
Yes. And so it was being whittled down. Now, we're at the case that the states decide. In South Dakota in 2006, there were a number of abortion bills that were passed. One of them was in case Roe v. Wade is ever overturned this law will then go into effect.
They're called trigger laws that if something happens, it triggers another consequence. And the consequence was what we have is law in South Dakota at this point in time.
