On February 22, the South Dakota Senate, by a vote of 23-12, approved legislation banning nearly all abortions in the state.  On February 24, the vote in the South Dakota House of Representatives was 50-18 (H.B. 1215).  Twelve days later, Gov. Mike Rounds signed the measure into law.  President Bush criticized the law as too extreme and reminded America of his own inscrutable belief that abortion is OK if the baby was conceived during a rape or an act of incest, but not otherwise.  Come July 1, committing an abortion for any reason other than to save the life of the mother will be a crime in South Dakota, punishable by a prison sentence of up to five years.

Or will it?  Long before the ink of Rounds’ signature had dried, the end runs were under way.  One is as sad as it is silly: Cecilia Fire Thunder, who last year defeated actor/activist Russell Means to become president of the Oglala Sioux (the tribe’s first female president ever), declared, “I will personally establish a Planned Parenthood clinic on my own land, which is within the boundaries of the Pine Ridge Reservation where the State of South Dakota has absolutely no jurisdiction.”  Planned Parenthood thanked her but declined her offer—for now, that is.  Their better-than-half-a-century record of exterminating the babies of very poor brown people suggests that they might one day be game.  Pine Ridge Reservation spans America’s two poorest counties, where unemployment exceeds 80 percent and annual per capita income hovers around $3,700.

Chieftess Fire Thunder’s contribution to the cause is a minor distraction.  Pine Ridge Reservation sits about as far as you can go from Sioux Falls and still be in the state.  Sioux Falls is where Planned Parenthood, once a week on “clinic day” (sometimes Mondays, sometimes Wednesdays), takes the lives of South Dakota’s unborn.  What is more, South Dakota Attorney General Larry Long made it clear that an abortuary on an Indian reservation would be limited to Indian women.  In 2004, only nine percent of those who procured abortions in South Dakota were Indian women.

The two significant efforts to stop the ban are a proposed statewide referendum on the law in November and, failing that, a challenge in the courts.  A referendum could stop the law in its tracks.  A court battle would, at least, enjoin it for a few years.

Planned Parenthood should have little difficulty collecting, at two dollars each, the 16,728 signatures needed to put the law to a November referendum.  Some pro-lifers are reportedly signing the petition, confident that a referendum will reinforce the ban, but calling the referendum’s outcome is not easy.  South Dakota does have a long-standing reputation as a state that is hostile to abortion.  The last abortionist resident in the state was Buck Williams, who packed up and moved out eight years ago.  The four abortionists who currently take turns working Planned Parenthood’s Sioux Falls abortuary fly in from Minnesota.

While shame and stigma probably keep abortionists from residing in the state, South Dakota may not be as vigorously pro-life as the vote counts on the law suggest.  Brian Burch, vice president of Fidelis, a Catholic legal organization lobbying for and offering counsel to the pro-life side in the current battle, believes that, of the 60 percent of South Dakotans who describe themselves as pro-life, some 10 to 15 percent would make exceptions for rape and incest.  Planned Parenthood, in hyping the referendum, will argue that the ban further victimizes rape victims.

Should Planned Parenthood’s referendum fail, they will take the battle to the courts.  The architects and sponsors of the ban, and Rounds himself, desire just such a confrontation.  Indeed, the current ban is not the first South Dakota law designed to provoke a federal lawsuit.  Last year, Rounds signed an informed-consent bill, which also passed the South Dakota House and Senate by sweeping margins.

H.B. 1166 declares that “an abortion is not voluntary and informed” unless the abortionist makes clear to the woman that “the abortion will terminate the life of a whole, separate, unique, living human being.”  The abortionist must explain to the woman that she has “an existing relationship with that unborn human being and that the relationship enjoys protection under the United States Constitution and under the laws of South Dakota” and that, “by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated.”  Further, the abortionist must be explicit about the risks associated with abortion, including “depression and related psychological distress” and “increased risk of suicide ideation and suicide.”  The law also requires that he explain the gestational age of the child and its level of development.  He must tell the woman that she will risk “infection, hemorrhage, danger to subsequent pregnancies, and infertility.”  Two hours must pass between the delivery of this counsel and the abortion.

This informed-consent law is tied up in Planned Parenthood v. Rounds, Alpha Center, et al., which has been in litigation in South Dakota’s U.S. District Court and in the U.S. Court of Appeals, Eighth Circuit, since last year.  Some pro-life observers of the case are enthusiastic because, for the first time in a legal battle, the “rights” of abortionists are pitted against those of women.  Planned Parenthood maintains that the law infringes on abortionists’ free-speech rights, and it is on these questionable grounds that the current injunction against the law has been issued.  Whether a judge will ultimately buy that argument is a separate question, but governments at all levels compel doctors to disclose risks and other information all the time.  South Dakota, on the other hand, is arguing that the law defends the constitutionally protected relationship between a mother and her unborn child, a relationship the law would recognize and make clear in a case, for example, where she planned to give the baby up for adoption.

The main part of the case will be heard this fall, but the outcome of Planned Parenthood v. Rounds, Alpha Center, et al. could influence a ruling in a future Supreme Court battle over South Dakota’s ban.  Significant, also, in such a case may be the findings of South Dakota’s Task Force to Study Abortion.  Created by the legislature at the same time the informed-consent bill was passed, the Task Force produced a 71-page report containing some 2,000 affidavits concerning the grave harm of abortion to women.  The findings and conclusions of the report are cited in Section 1 of the current ban, which takes pains to identify “scientific advances since the 1973 decision of Roe v. Wade” that show that “life begins at the time of conception.”

If South Dakota’s most recent ban on abortion should make it to the Supreme Court, the informed-consent law (provided it survives its own legal trial) and the report of the Task Force might combine to provide the evidence needed for a ruling in favor of the unborn.  Those are a lot of ifs, but Planned Parenthood is not taking any chances.  They fear the Task Force report, and well they should, given that it inspired the overwhelming majorities in South Dakota’s House and Senate to favor the current ban.  They have already begun efforts to discredit it.  And one anonymous pro-life donor sees hope: He has put up a million dollars to defend the current ban in court.

The pro-life movement, however, is far from convinced.  One close observer described the division in the movement over the South Dakota ban as “tremendous.”  National pro-life organizations, including Americans United for Life in Chicago, have opined that the South Dakota ban is ill timed.  It is not clear that the ban will ever make it to the Supreme Court, they argue, but even if it does, the current composition of the Court is such that there might still be a majority hostile to life.  Risking a third decision in favor of abortion (following Roe and Casey), when an unfavorable decision could derail pro-life efforts for many years, may seem imprudent.  Advocates of the South Dakota ban disagree.  They saw an opportunity created by years of cultural and legislative progress on behalf of the unborn and seized it.

For 33 years, prudence has been the watchword, and the chip-away-at-Roe faction has not slowed abortion in this country.  It would be refreshing and inspiring to see Governor Rounds set prudence aside and, come July 1, send his National Guard to shut down the Planned Parenthood abortuary in Sioux Falls.