Mark Schiefelbein/AP Photo
Abortion rights activists and Women’s March leaders protest as part of a national day of strike actions outside the Supreme Court, June 24, 2024, in Washington.
In November, South Dakotans living with a near-total abortion ban could vote to reverse that prohibition through a proposed constitutional amendment. Currently, abortion is completely banned and criminalized in South Dakota, except for the life of the mother. There are no exceptions for rape or incest.
If the citizen-initiated Constitutional Amendment G passes, it would return the state to a trimester framework that leaves abortion decisions to women in the first trimester while allowing regulations that are “reasonably related” to the health of the woman in the second trimester, and a ban of abortion, except to “preserve the life and health” of the woman, in the third.
Even in one of the country’s most conservative states, the near-total ban has divided voters. A fall 2023 poll by South Dakota State University found that a majority of registered voters want exceptions for rape and incest. However, while 48 percent of those surveyed supported returning to the abortion access standards that existed before the decision, 40 percent opposed such a move.
Pro-choice advocates argue that the South Dakota lawmakers responsible for the current ban are out of touch with the electorate. But some anti-abortion groups view the ballot measure as a potential win: The higher turnout of a presidential election year, they believe, favors Republicans who oppose abortion.
Even in one of the country’s most conservative states, the near-total ban has divided voters.
Moreover, even if the amendment passes, the GOP supermajority that controls the state legislature may find a way to work around it. The attorney general’s official explanation added the caveat that “judicial clarification of the amendment may be necessary.” Republican lawmakers could twist the provision for regulations in the second trimester to continue to restrict access. Consequently, many pro-choice organizations, including Planned Parenthood and the ACLU, don’t believe the amendment goes far enough.
“My concern is that when this passes, everybody here is going to think, oh, great, it’s fixed,” says Kim Floren, co-founder of Justice through Empowerment Network, an abortion fund that supports South Dakotans seeking abortions. “No one’s going to care anymore, and we’re going to be exactly where we were five years ago.”
Before Roe was overturned, South Dakota had passed 111 statutes—the most of any state—regulating abortions, ranging from a 72-hour waiting period to targeted restrictions on abortion providers, or TRAP, laws that include staffing requirements and specifications for the sizes for the rooms where procedures will take places as well as recovery areas. There was only one abortion clinic in the state, and doctors had to be flown in from Minnesota. In 2021, fewer than 200 abortions were performed. That same year, Vermont, despite having a smaller population, reported over 1,000.
Dakotans for Health, the organization campaigning for the measure, defends the ballot measure’s Roe framework. Adam Weiland, the group’s co-founder, said the amendment will protect “over 99 percent of abortions in the state.” “It’s what people want in South Dakota; they want to restore the rights that were taken from them,” he says.
“There are some people arguing that you have to deal with political reality on the ground and limit yourself to what you could get passed,” explains Mary Ziegler, a professor at the University of California, Davis School of Law. “And then there are people who argue that that’s reinforcing limits that don’t need to be there.”
Pro-life supporters had tried to prevent the measure from even appearing on the ballot. On Monday, a federal judge declined to intervene in a state court lawsuit that would have invalidated the ballot petitions gathered for the measure. Earlier this year, South Dakota lawmakers enacted an emergency law that allowed voters to withdraw their signatures from ballot petitions. State Rep. Jon Hansen (R-Dell Rapids), the primary sponsor of that plan and co-chair of the campaign opposing the amendment, then led an effort to call people who’d signed the petitions to ask them if they wanted their names removed. Monae Johnson, the South Dakota secretary of state, labeled the phone calls a “scam.”
“They’re not listening to their constituents, and that’s exactly why our state’s founding fathers put the initiative process in our constitution,” says Weiland. South Dakota became the first state to adopt citizen initiative and referendum processes in 1898. Voters have used these tools to pass several progressive reforms, including expanding Medicaid. South Dakotans even defeated abortion bans put on the ballot in 2006 and 2008. Since then, the legislature has introduced 61 bills to limit the citizen initiative process, such as requiring petition circulators to obtain and display an identification number.
“The South Dakota legislature has quite a history of trying to work against the will of the people,” said Nancy Turbak Berry, a former state lawmaker and current chair of the Freedom Amendment Coalition.
“The South Dakota legislature has quite a history of trying to work against the will of the people.”
In a May poll conducted by South Dakota News Watch and the Chiesman Center for Democracy at the University of South Dakota, 53.4 percent of respondents supported the amendment; 35.4 percent were opposed. But 11.2 percent of respondents were undecided—and Julia Hellwege, the director of the Chiesman Center, says that the outcome is “not a foregone conclusion.”
In fact, the “Freedom Amendment,” as Dakotans for Health has labeled it, appeals to many Republican voters—Weiland calls them “cowboy conservatives”—who don’t want government intrusions into their lives. Despite the state’s Republican trifecta, the South Dakota electorate is “not all-or-nothing polarized, even on this question,” says Hellwege.
While millions of out-of-state donations pour into the high-profile campaigns in Florida, Arizona, and Nevada, Dakotans for Health has relied on statewide grassroots support. Beth Huang, a program officer with the Tides Foundation, which contributes to social justice causes nationwide and is backing pro-choice ballot measures in Florida, Colorado, and Nevada (and is considering donations in several other states), told the Prospect that they hadn’t considered supporting the South Dakota initiative because of its relatively small population.
But Weiland believes that overlooking South Dakota is a mistake.
Pro-life organizations “are convinced that this is their opportunity to claw something back because the national folks are focused elsewhere,” Weiland says. “This is an opportunity for imperative change, because if you can do it in South Dakota, it will strike fear into the hearts of every red-state legislature in the country.”
