Those against a proposed abortion rights ballot question say it allows for abortion up to birth.
Anti-abortion groups say that’s based on a case that was overturned when the US Supreme Court struck down Roe V. Wade.
Constitutional Amendment G grants abortion rights in the first trimester, while allowing the state to regulate the procedure as a pregnancy progresses. Abortion exceptions are granted to preserve the life and health of the mother.
But, Caroline Woods — a spokesperson for Life Defense Fund — and other abortion-rights opponents say the language in the measure regarding “health” of the mother allows for abortion up to birth.
“The third trimester means more than just physical health because the drafters of Amendment G wrote physical health early in the amendment language, but also only wrote health in the third trimester," Woods said. "Courts would therefore interpret health to mean more than physical health.”
Officials with Life Defense Fund say the court’s interpretation of health exceptions comes from a 1973 case called Doe V. Bolton, which interpreted health exceptions to mean physical, as well as emotional and psychological. That case was decided the same day as Roe V. Wade.
But some say that case was tossed out with Roe.
“Doe is overruled by Dobbs, the case that overruled Roe," said Jill Hasday, a constitutional law professor at the University of Minnesota. She says the Dobbs decision places the issue of abortion back to the states.
"I would be reluctant to rely on Doe V. Bolton for anything because it's overruled," Hasday added.
Backers of Amendment G say health exception language in the second and third trimesters have different purposes.
Rick Weiland is with Dakotans For Health. He said the state can regulate abortion but only in ways that are related a pregnant woman’s physical health.
“Things like the abortion needs to be performed by a licensed medical professional. The abortion needs to be done in a licensed medical facility," Weiland said. "It’s those kinds of things you could say reasonable and related to the health of the pregnant woman.”
South Dakota is one of six states that do not have health exceptions written in its abortion ban law.
South Dakota law experts say state courts will interpret Amendment G if it passes and there are conflicts between statutes and the constitution. That jurisprudence on abortion will start from scratch.
