Abortion opponents in South Dakota had a simple message for voters in the mid-term election: Vote what you know in your heart is right.  More than 148,000 people heeded the call, voting to retain a state law that banned virtually all abortions in South Dakota.  Their numbers, however, amounted to just 44 percent of the electorate.

What had been the nation’s most restrictive ban on abortions died as the final votes were tallied in the early morning hours of November 8.  Supporters of the ban—which was passed by the state legislature and signed into law by Gov. Mike Rounds earlier in 2006—hoped it would send South Dakota on a collision course with Roe v. Wade.  But a majority of voters called off the assault.

The outcome in South Dakota serves as a sobering benchmark for the pro-life movement.  The state is among the most socially conservative in the nation, and, if abortions can’t be banned in South Dakota, pro-lifers face a long march to reach their goal of eradicating abortion in the United States.

Despite the defeat, pro-lifers in South Dakota aren’t waving any white flags.  In the days following the election, supporters of the ban pondered their next move, and there will almost certainly be another attempt by pro-life lawmakers to restrict abortion during South Dakota’s 2007 legislative session.

The South Dakota Campaign for Healthy Families [sic], which fought to overturn the ban, succeeded by splintering off enough voters who oppose abortion but also believe there should be exceptions.  The ban in South Dakota contained no explicit exceptions for women who are victims of rape or incest.  Supporters of the ban tried to counter voters’ concerns with two arguments.  They argued that a life, even one conceived through rape, is still an innocent human being who deserves protection under the law.  They also pointed out that the ban still allowed women to use emergency contraception if they thought they might be pregnant.

The Sioux Falls Argus Leader, the state’s largest newspaper, commissioned a poll two weeks before the election.  The poll foreshadowed the election results, finding a ten-percentage-point margin between those who supported the ban and those opposed to it.  The same poll asked those who opposed the ban whether they would support ending abortion if a law contained clear exceptions for rape and incest.  Fifty-six percent who opposed the ban in its current form said they would support a measure that included such exceptions.

When lawmakers navigated their abortion bill through the legislature, they beat back several attempts to add exceptions to the law.  They argued exceptions—particularly a broadly interpreted exception for women’s “health”—would do nothing to stop abortion on demand.

But now some lawmakers are mulling how rape and incest exceptions could work.  Would, for example, a woman need to file a police report claiming her pregnancy was caused by rape or incest before being allowed to obtain an abortion?  Would there need to be an arrest or prosecution?  Or could a woman simply show up at the state’s lone abortuary in Sioux Falls and claim she was raped?  And, if such exceptions were in state law, could there be constitutional challenges under the Equal Protection Clause?

These are murky issues.  But there’s a good chance that some South Dakota lawmakers will take them on.  If a law emerges with rape and incest exceptions, it won’t please everybody in the pro-life community, but it could please a majority of voters.  Of the 814 pregnancies that were terminated in South Dakota in 2004, only a small handful are thought to be the result of rape or incest.

How would abortion supporters react?  They weighed their options carefully when the first ban passed.  They could have taken the well-trodden path to court.  But after deliberating, they chose to take their case to the voters, mindful that, if the people upheld the ban, they could still seek refuge in the judiciary.

Faced with a law that contains rape and incest exceptions, abortion supporters would probably not repeat the process of collecting signatures and referring the issue to votes.  The effort and ensuing campaign were expensive, costing both sides millions of dollars.  What’s more, they would probably lose in Round Two, if the polls are to be believed.

Most likely, they would take it to the judge.  And pro-lifers in South Dakota would be back on the road to the Supreme Court.