In her continuing campaign for the 2024 Trumpublican Vice-Presidential nomination, Governor Kristi Noem is proposing two anti-abortion bills, a copycat Texas ban than would prohibit abortions after fetuses exhibit a heartbeat and allow vigilantes to haul abortion providers or abettors into court for bounties, and a codification of the Governor’s medically unjustified prohibition on taking abortion pills at home.
Activists can pack the committee rooms to protest these bills, but the Senate’s swift approval of another of Noem’s provocative culture-war bills, the ban on transgender athletes in female school sports, indicates that lots of impassioned committee testimony won’t stop the Legislature’s drive to discriminate and oppress disfavored groups, including women. The only viable option for stopping these abortion bans appears to be referendum: let the bills pass, spend the next two months building a coalition to circulate petitions, and on March 28, the moment the Legislature adjourns, start pounding the pavement collecting signatures to refer both laws to a public vote in November. South Dakota voters rejected abortion bans in 2006 and 2008; there’s more chance that a similar majority would turn out to toss these new Taliban laws than that a majority of Republicans in Pierre would.
Collecting 16,961 signatures by Monday, June 27 is a lot of work, but it would provide a rewarding opportunity for grassroots political activism to engage new volunteers and voters in a discussion of women’s rights, medical science, and the proper role of government, all things that our Republican Governor and Legislature ignore. Properly leveraged, that discussion could lead voters to recognize that the only way to stop such bad laws from cropping in the future is to replace the lawmakers on the ballot who keep proposing such bad laws. Smart Democratic candidates willing to run as straightforward opposition candidates and defenders of women and science and properly limited government could turn the 2% of the electorate necessary to erase Noem’s 2018 margin of victory, install just nine more Democrats in the Senate, and ensure vetoes of any such infringing bills for at least four years.
But even if the voters block these two bills, the Trump Supreme Court is about to overturn Roe v. Wade. The moment the Court issues that ruling, South Dakota’s “trigger law” banning abortion comes into effect. Under SDCL 22-17-5.1, if the Supreme Court reverses its standing precedent and allows states to prohibit abortion at any stage of pregnancy, performing an abortion will be a Class 6 felony unless the doctor can make an “appropriate and reasonable medical judgment that performance of an abortion is necessary to preserve the life of the pregnant female.” The trigger law includes no exceptions for rape or incest, and it applies from conception, without regard to fetal heartbeat.
By subordinating women’s rights to fetus fetish, a Supreme Court reversal of Roe v. Wade would moot a vote on Noem’s new abortion bills before they would become law by passing a far more drastic abortion ban. A referendum of the Texas bill could at least stop the state from paying bounties to anti-abortion posses, but the mifepristone restrictions would become largely irrelevant, as South Dakota’s trigger law would only allow abortions in the case of immediate threats to the pregnant woman’s life, and I’ll speculate with my Google medical degree that by the time a woman is in such clear danger from a pregnancy, doctors won’t be able to prescribe mifepristone to intervene.
To further frustrate opponents, Noem is including an emergency clause in the mifepristone restriction. That emergency clause, making the bill law immediately upon passage instead of waiting until July 1, would require a two-thirds vote of the House and the Senate. If that bill passes, the emergency clause would prohibit any referendum.
So maybe we are back to lobbying the Legislature to stop Noem’s abortion posturing… but it won’t be any fun—i.e., it won’t be with the joy of knowing that we are fighting to protect women’s rights. Maybe we can get enough doubtful Senators to deny the mifepristone bill a two-thirds vote, but the only argument that might work with a majority of Republicans is to point out that, hey, the Trump Court is going to give South Dakota a near total abortion ban, so neither of these bills is necessary. Why clutter the books just to give Kristi a couple extra campaign props? You did you work in 2005 when you passed the trigger law; let Gorsuch, Kavanaugh, and Coney Barrett do your work for you.
There isn’t time to work up an initiative to repeal the trigger law alongside referring Noem’s double-barreled fetus worship. The LRC doesn’t have to take up any initiative petitions until after the Legislative Session is done on March 28, and the Attorney General could then sit on any petition for 80 days, well past the May 3 deadline for submitting initiative petitions for the 2022 ballot.
There thus seems no way to stop a near-complete abortion ban in South Dakota in 2022. The only resort left for voters who’d like women to maintain their equal citizenship is to turn out in force in November and turn Noem and the Republican Taliban out of office. Elect a Governor and legislators who respect life, liberty, and the equality of women, leaders who will undo South Dakota’s abortion restrictions and defend women from further infringements of their rights.