In November, South Dakotans will vote on whether to place abortion rights into the state constitution.
It’s the third time in 20 years the electorate has weighed in on abortion.
Constitutional Amendment G allows the right to abortion in the first trimester while giving the state the ability to restrict the procedure as a pregnancy progresses.
Opponents of the ballot question say its too extreme and allows for abortion up to birth.
“I’m here to tell you this is too radical, it’s too far. It’s on par with North Korea and China’s policy on abortion," said Caroline Woods, a spokesperson with Life Defense Fund, during the Vote South Dakota Forum in Mitchell last month.
Those two Asian countries have vastly different abortion laws. While China has one of the highest abortion rates in the world, the South Dakota’s current abortion law is similar to North Korea’s.
According to the World Health Organization, in 2015 North Korean authorities issued directives banning abortions.
South Dakota law punishes doctors who provide an unlawful abortion with a Class Six felony—which could result in two years behind bars.
Woods said the proposed constitutional amendment will remove state protections.
“It rids all health and safety protections for women. This takes us back to the dark ages, you guys," Woods added. "This is a dangerous amendment for women and children all across our state.”
Backers of Amendment G deny it would get rid of state regulations for physicians. The measure prohibits the state from regulating a pregnant woman’s abortion decision and her ability to get one in the first trimester. The state can restrict the procedure as a pregnancy progresses.
“Abortion up to birth is a slogan, not a reality. It doesn’t exist," said Nancy Turbak, chair of the Coalition for Freedom Amendment G. "If a woman is approaching term, and for some reason her health or safety require that the pregnancy end, the doctor doesn’t abort the fetus. They deliver the baby.”
Turbak said no one should be forced to get an abortion and no one should be forced to give birth.
“We need to adopt a constitutional protection to take us back to the days we had for 50 years under Roe V. Wade," Turbak added. "That’s all this does.”
The Roe V. Wade framework is different than what traditional abortion rights groups in the state think is needed. Regional groups Planned Parenthood and ACLU are declining to support Amendment G.
“I think one of the mistakes that we at the ACLU are hell bent on avoiding is creating any sort of legal framework that could be called into question or that could be chipped away at or that could reinstate the status quo," said Libby Skarin, the interim director of the ACLU South Dakota, earlier this year.
Skarin said she’s concerned the proposed language could result in a constitutional right in name, but not reality.
South Dakota’s abortion ban was triggered when the US Supreme Court overturned Roe V. Wade.
The nation’s top court says the issue of abortion is best left up to the states to decide.
If Constitutional Amendment G passes the state lawmakers will have to adjust statue to align with the constitution.
Conflicts between state statute and the constitution will get interpreted by state courts.
“This should be entirely a state law question," said Neil Fulton, dean of the University of South Dakota Knudson School of Law. "I won’t tell you that some creative lawyer won’t invent some question they’ll try and raise. But, as I see it, predominantly these are going to be state law questions decided in South Dakota courts.”
If passed, Amendment G would be a new constitutional provision. Aside from general constitutional provisions and how courts read them, Fulton said the state courts will have to start from scratch.
“This is a spot where South Dakota courts would be starting—I would say—from a relatively blank page because it’s a new provision. They would be building this jurisprudence, mostly, from the ground up.”
Voters have until November 5th to cast their ballots in the 2024 election.
