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Write Roe v. Wade into SD Constitution—Dakotans for Health Preparing Initiative for 2024 Vote

[Disclosure: I work for Dakotans for Health. This blog post is written on my own time and dime.]

Those South Dakotans marching up Phillips Avenue in silent protest of South Dakota’s abortion ban yesterday may wish to raise their voices come November, not just in voting, but also in circulating a petition to write Roe v. Wade into the South Dakota Constitution. South Dakotans wouldn’t get to vote on restoring women’s rights until November 2024, and an approved amendment wouldn’t take effect until July 1, 2025, but that’s the soonest South Dakotans can make such a constitutional change, and that process must start now.

Secretary of State Steve Barnett has posted an initiated constitutional amendment submitted by Rapid City attorney Jim Leach on behalf of Dakotans for Health, the ballot question committee that is promoting Initiated Measure 28 for Medicaid expansion. The proposed amendment closely follows the trimester standards established by the 1973 Supreme Court for the proper scope of government regulation of abortion by trimester:

  1. In the first trimester, the decision to have an abortion is left to the judgment of the pregnant woman.
  2. In the second trimester, the state may regulate abortion, but only in ways “reasonably related” to protecting the pregnant woman’s health.
  3. In the third trimester, the state may regulate or even prohibit abortion except in cases where a woman’s doctor says an abortion is necessary to protect the woman’s life or health.

The Secretary of State has posted the draft amendment submitted to the Legislative Research Council in May for review along with the LRC’s June 17 comments and proposed revisions. For the first time, the LRC carried out its new statutory duty to provide an opinion on whether the amendment obeys the single-subject rule and properly seeks an amendment and not a farther-reaching revision of the constitution, the issues that Governor Noem raised in her successful court challenge to Amendment A, the marijuana legalization that voters approved in 2020. LRC director Reed Holwegner shines a green light on both points: the proposed amendment “appears to embrace only one subject, the availability of abortion” and “does not result in a far-reaching, complete, comprehensive, and substantial rewrite of the state constitution.”

SDCL 2-9-30 requires the LRC to notify petition sponsors if their proposal would “have an impact on revenues, expenditures, or fiscal liability of the state or its agencies and subdivisions.” The LRC’s response does not indicate any fiscal impact from the state-level restoration of Roe v. Wade rights. It would thus appear that this amendment would not require the inclusion of a fiscal note on circulator handouts or the ballot.

Dakotans for Health has subsequently made minor revisions and submitted a final draft of the amendment to the Attorney General, who has 60 days to prepare a title and explanation to appear alongside the final wording of the amendment on the initiative petition. Thanks to more Republican process-jamming, the Attorney General then gets to delay release of the title and explanation for another 20 days by taking 10 days of public comment on his proposed title and explanation (not on the amendment itself, mind you, only on the A.G.’s title and explanation) and then another 10 days to revise and publish the final text of the title and explanation.

Dakotans for Health has started early enough that, even if the Attorney General takes the full 80 days to produce a title and 200-word-maximum explanation, that delay will not deprive Dakotans for Health of any possible petition circulation days. Dakotans for Health submitted its final language to the Attorney General’s office on June 20. The A.G.’s staff were probably a bit distracted that week, but turnover at the top doesn’t pause the clock for carrying out official duties. Attorney General Mark Vargo has until August 19 to produce a draft title and explanation, until August 29 to take public comment on that draft, and until September 8 to produce the final title and explanation. SDCL 2-1-1.1 gives citizens seeking an amendment to the South Dakota Constitution twelve months to collect signatures, in this case, starting November 5, 2022. Thanks to getting started early, Dakotans for Health will thus have at least eight weeks after A.G. Vargo issues his title and explanation to format, proofread and print its petitions and circulator handouts; recruit and train circulators; and submit final paperwork to the Secretary of State before beginning its petition drive three days before this year’s general election.

While other states (e.g., Nebraska, Michigan) allow citizens to be on the streets right now collecting signatures to place measures on their ballots this November, South Dakota requires citizens to call for votes on constitutional amendments a full year before the actual election. South Dakotans have no mechanism to respond to the Alito Court’s reversal of Roe v. Wade with a constitutional restoration of those rights this year. 2024 is the soonest we can call a vote, and the process for calling that vote has to start now.


  1. Jake 2022-06-30 09:35

    South Dakota’s Republican’s proven method of governance; ” to retard or restrict any semblance of the ability (ies) of the voters to create their own laws: ( “they are not smart enough to pass laws, just smart enough to vote us into office so we WE can pass then”!)

  2. Mark Anderson 2022-06-30 10:10

    This has to happen at an important election for maximum turnout.

  3. Cory Allen Heidelberger Post author | 2022-06-30 11:50

    Mark, turnout in 2006, a mid-term election, was 341K, 67.3%. Turnout in 2008, the Obama/McCain election, was 387K, 73.0%. Both elections gave South Dakotans a chance to vote on abortion restrictions. In 2006, 186K voters, 55.6%, rejected Referred Law 6. In 2008, 207K voters, 55.2%, rejected Initiated Measure 11.

    The result itself was consistent between mid-term/gubernatorial electorate and Presidential electorate. But yes, having the measure on the 2024 ballot, when we may expect larger turnout, will lend more weight to the voters’ verdict.

    I wish we could put this measure on the 2022 ballot and make it an issue in the Noem/Smith race and in every Legislative contest.

  4. John Dale 2022-06-30 11:57

    There is no way this will survive the legislature in SD, right?


    There are a lot of better initiatives in my opinion, given that the best way to put a huge dent in unwanted pregnancy is to stop having endless vacuous and unfulfilling sex.

  5. larry kurtz 2022-06-30 13:54

    If you’re denied medical care in South Dakota any person who can make it to Albuquerque or Santa Fe for their procedures can stay in our casita free of charge. Just email me from my website.

  6. Jake 2022-06-30 14:07

    Of course, John Dale doesn’t offer any alternatives; so,,,…

  7. Nick Nemec 2022-06-30 15:06

    John Dale, the entire reason to do this as a constitutional amendment instead of as an initiated law is to make it harder for the legislature to change the what the voters do.

  8. larry kurtz 2022-06-30 15:14

    John Dale is simply a more racist Sibby.

  9. leslie 2022-06-30 16:47

    “stop having endless vacuous and unfulfilling sex.” heh heh heh. Poor guy. I bet he had no problems getting over any nicotine, drug and alcohol addictions either.

    I know, “dah Nile.”

    oh, and i am not sure the state’s i&r restrictions, in toto, would pass judicial review, what with the constitutional right in the citizens to initiate and refer laws. what an outstanding ally progressives have in the acumen of Leach, Esq.

  10. Bob Newland 2022-06-30 20:34

    I actually laughed. John Dale suggests we quit having vacuous and unfulfiling sex. Without vacuous and unfulfilling sex, there’d be like, not much sex.

    I propose a SoDak law. “Any performance of vacuous and unfulfilled sex shall be punished by time served.”

  11. Cory Allen Heidelberger Post author | 2022-06-30 20:38

    On the Legislature—what Nick said. If we’re going to work up a sweat petitioning for the restoration of women’s rights, we have to work up the double sweat necessary to put those rights in the state constitution, where no misogynist, Constitution-misreading Legislature can touch them.

    This amendment, if enacted, should moot the Alito-triggered abortion ban as well as a lot of the other Alito-mooted restrictions still on the books. However, if we really wanted to clean up our law books, I could share with you the 20-plus-page draft of revisions to all of South Dakota’s abortion laws that might bring them into tolerable compliance with this amendment and the fundamental rights of women to control their bodies.

  12. Francis Schaffer 2022-06-30 21:27

    Is John Dale; when referencing ‘vacuous and unfulfilled sex’ quoting his partner or his personal experience. Asking for a friend.

  13. larry kurtz 2022-07-01 06:54

    Speaking of more vacuous, unfulfilling sex and the Great Replacement white men are seeking vasectomy consultations at swelling (sorry) rates up 900% in some markets since the packed christianic SCOTUS aborted Roe.

  14. John Dale 2022-07-01 08:07

    I think this political era in South Dakota will be referred to as the initiative wars.

    The majority of the state is networked through churches and other pseudoreligious organizations.

    They can pass virtually any initiative in their overton window. Abortion is smack dab in the center, and I can tell you retaliatory preparations are already *ahem* laid.

    Larry Kurtz – I can tell this is a difficult issue for you. I suggest you use your powers of wit and acute analytical abilities to address the issue of when murder becomes illegal and why.

    Clearly we can kill sperm and egg independently and that’s not murder. Clearly, killing a human being is murder.

    When does a person get that right and why?

    This is the dead horse argument, and we know what the arguments are, and the best argument won in my opinion.


    I would ask you to consider the analysis of my personal favorite contemporary philosopher, Christopher Hitchens:

    “Look, once you allow that the occupant of the womb is even potentially a life, it cuts athwart any glib invocation of ‘the woman’s right to choose.’ If the unborn is a candidate member of the next generation .. [abortion is] a very reactionary and selfish position .. the theory of evolution .. establishes beyond reasonable doubt that life is a continuum that begins at conception because it can’t begin anywhere else.” — Christopher Hitchens

    I recognize that we do not have the systems in place for families in the US right now. We could have spent the last 50+ years ensuring families were our #1 priority. But “we” did not do that. It doesn’t change the fact that generally I don’t have the right to take your life, nor you mine, and we need the most sane, informed, and logical approach for determining when you got that right.

    Dear Francis – It’s a pretty rude question, but I am not shy to answer it – I have had a string of very fulfilling sexual experiences spanning decades, and I do my best to be a caring and generous, responsive and gentle lover to the same woman. Mating for life is noble in the animal kingdom, and it is noble for humanity, too, if and when it can be achieved.

    Dear Bob – I would not support that law, and I recommend you stop acquiring your sexual proclivities from beer commercials.

    Dear Larry – I must be dumb. Can you help me understand how advocating for black families by ending abortion is racist?

    Get your heads in the game, simps.

    That is all.

  15. John Dale 2022-07-01 08:15

    “Militant Atheist” Christopher Hitchens.

  16. larry kurtz 2022-07-01 08:51

    As has been said before, in South Dakota freedom is just another word for nothing left to choose.

    Fact is: in South Dakota Republicans go to Pierre for the lobbyist-provided hookers while Democrats go to Pierre because they are the hookers.

    Democrats aren’t going to return to my home state to be repressed, oppressed and depressed: South Dakota is doomed to be a sh!t hole for Republicans forever.

  17. Donald Pay 2022-07-01 09:36

    John Dale: “I think this political era in South Dakota will be referred to as the initiative wars.”

    Interesting. I’m not sure how far back this goes, though. I go back to 1980, when the Black Hills Energy Coalition put the issue of nuclear power, nuclear waste and uranium mining on the ballot. There were more ballot measures in the 1980s and 1990s, some of them by initiative or referendum, but most were put on by the Legislature. The Legislature back then always complained about the number of initiatives on the ballot, but the reality is the Legislature puts far more measures on the ballot than citizens do through petitioning.

    I, too, like that Christopher Hitchens’ quote. It sums up my philosophy. The decision to abort a pregnancy can be a selfish position, but it can also be a rational and moral one. The woman is the only one who can weigh all the facts and moral issues involved. There are many factors in each individual woman’s life that Dale or the patriarchy have no idea about. She has to be trusted to make that decision. From an evolutionary standpoint, women have more to gain and to lose from both a pregnancy and ending a pregnancy, That’s why they need to be “the decider.”

  18. Francis Schaffer 2022-07-01 10:07

    Dear John Dale,
    I apologize for the rudeness you perceive from my comment. I want a clarification on your comment then; ‘the best way to put a huge dent in unwanted pregnancy is to stop having endless vacuous and unfulfilling sex.’ How is it you know this is the cause of unwanted pregnancies?

    Also, thank you for this observation – ‘The majority of the state is networked through churches and other pseudoreligious organizations.’ If this is the case then I say tax them, enough of being involved with the making of laws for all and begin to pay taxes as the price of admission.

    I would think everyone knows potential life is present in every egg, which are fixed at the birth of every women. If the ‘occupant of the womb’ is not viable for continued development, the occupant ceases and must be aborted from the body for the continued life and health of the woman.

    Medical decisions should be in the realm of the individual and her/his medical doctor. If this is not the case, when will we all get to make medical care decisions for those in our society who smoke, drink excessively, are physically inactive, obese, drug abusers, etc.
    My poor decision of the day – ‘Responding to John Dale’s comment on Dakota Free Press’. Well I got that out of the way now on to work.

  19. mike from iowa 2022-07-01 10:13

    Clearly, killing a human being is murder. Jason Ravnsborg begs to differ.

  20. Cory Allen Heidelberger Post author | 2022-07-01 11:00

    The state has no compelling interest in non-vacuous, fulfilling sex. No citizen has a constitutionally protected right to non-vacuous, fulfilling sex.

    Because of pregnancy’s unique and exclusive burdens on women, we cannot apply Hitchens’s glib pontifications on “life” to justify state intrusion on women’s private decisions. The complexity and moral uncertainty of life in utero and the conditions that may impose pregnancy on women are too complex for the state to resolve by legal formula and police enforcement. We achieve the most moral outcomes and maximal liberty by leaving pregnancy decisions to women and protecting their autonomy by codifying Roe v. Wade.

  21. John 2022-07-01 11:23

    Compelling fact. The Catholic Church will only perform a baptism AFTER a child takes a breath. That is when life begins. A life is from first to last breath. Period.

    Noem and her apostles will kill women. Noem and her apostles have flat learning curves (but we knew that).
    Poland’s strict anti-abortion law is killing women.

    Ireland’s rabid anti-abortion law killed a popular dentist. In response the Irish changed their constitution to permit abortion.

  22. larry kurtz 2022-07-01 13:13

    Not to be too cynical or contrary but how are these initiatives that are known to promoters and signatories alike as fodder to be fed to the Pierre sausage grinder not becoming just another grift?

  23. Cory Allen Heidelberger Post author | 2022-07-01 13:25

    This amendment is designed to circumvent the Pierre sausage grinder. It is also the surest, soonest way to restore South Dakota women’s abortion rights. Larry, I welcome any better suggestions (other than moving to Nevada, Ireland, or other free Republics).

  24. P Meyer 2022-07-01 19:13

    Now… how can we take away “rights” from the men of the country?? Determine that the “little blue pill” is illegal? Let’s take that away too, plus… whatever other items that give men such a high and mighty level of humanity over the women of America. I’m sick and tired of how men (and stupid, confused women) enjoy taking away our rights to determine our lives (and health levels). America was founded on the premise that we wanted to escape the oppressive governments in Europe and other areas of the world. Also, escaping the hate that religious groups lauded over individuals in other countries…. now, here in our “great” country we are being subjected to all of that once again! The great “circle” of humanity…? The history of the women’s struggle to be able to stand tall and strong and determine their destinies… is once again being shot down by the ever-present high and mighty “old grey-haired, be-grizzled males” who enjoy keeping their “women” under their thumbs and totally subservient to their desires. These days all we need are the witch trials of the early days of America….. to fully show how far out of whack the Conservative movement has moved. (Led by an individual who has always had his way with “his women” and used and abused far too many people [men and women!!] along the way.) I cannot respect anyone who supports that movement, nor that orange monster, in any fashion.

  25. Cory Allen Heidelberger Post author | 2022-07-01 20:02

    Take away rights from men? P Meyer reminds us of the unique nature of pregnancy and the unique sort of autonomy at stake here, an autonomy that the court has taken away from women specifically, an autonomy for which there is no easily state-seizable counterpart right among men.

    Forced counseling prior to vasectomies? Sex licenses, with registration numbers tattooed on every male member, with fluorescent ink so women can easily read them in the dark?

    The challenge is thinking of a law we could pass that would force men to accept a nine-month biological burden that may bankrupt, debilitate, or kill them, a burden that they are otherwise free to choose in consensual relationships but which all too often may be forced upon them by aggressors.

    There just aren’t commonsense analogies. Pregnancy burdens women uniquely. The questions of life and competing rights and obligations are unique. they defy analogy to any other legal question.

    Even if we accept that the fetus constitutes a form of human life, we must come to a unique conclusion: the fetus is so uniquely tied to and demanding of the female host that the female host must be given absolute control of the pregnancy, up to and including terminating it before delivery of a living newborn human.

    That’s along way of saying that a woman’s pregnancy is nobody’s business but hers. Not my business not your business, and most certainly not the business of the state. We don’t get to force anyone to conceive, carry, or deliver a child. Ever.

  26. Francis Schaffer 2022-07-01 21:47

    P Meyer
    I am dusting off my copy of the Malleous Maleficarum just in case it is reused on people.

  27. Arlo Blundt 2022-07-01 23:26

    Cory..I have long felt that abortion is one area that is not any of a man’s business. It is the most moral choice just to keep our mouths shut. It is, as you point out, the Woman’s choice, her decision alone. However, in the present circumstance, when we see human rights and Constitutional rights revoked, it is clearly time for men of good conscience to speak out and stand (or walk) with women. We’re next.

  28. mike from iowa 2022-07-02 08:56

    · 8h
    Mississippi legislators openly discuss using dogs at airports to sniff women leaving the state.

    The dogs can tell if a woman is pregnant.

    The surprise here is Mississippi has airports.

  29. Kyle Krause 2022-07-05 11:54

    I assumed that a constitutional amendment had to be in the works and was curious what it would look like. The details of the proposal could certainly be the difference between success and failure, as the majority of people hold somewhat of a middle ground on abortion. Some thoughts:

    1) The trimester approach seems a bit dated and ambiguous. If I google pregnancy trimesters, I get varying answers as to when the third trimester starts, ranging from 24 to 27 weeks. Additionally, the Casey decision effectively eliminated the trimester standard in favor of a “viability” line that is currently closer to 24 weeks. I wonder if a weeks of pregnancy definition would be better than the trimester one.

    2) Codifying Roe just puts us back in a position where the legislature can effectively curtail abortions through inconvenience like they did before with totally unnecessary laws like waiting periods, a 3-visit regimen for medication abortion, and forced propaganda in the doctor office.

    3) I wonder politically how this approach would fare versus several independent initiatives. There could be one on medication abortion and telemedicine, one on the right to travel out of state, one establishing a right up to 24 weeks, and perhaps more. I don’t really know the answer. My inclination says to do something protecting the right up to 24 weeks and to also build in some stronger language to try to prevent the curtailment of the right via inconvenience.

    Perhaps something like this: “A pregnant person in South Dakota has the right to an abortion until the 24th week of gestation. The State may make no laws impinging on that right except such laws as are clearly medically necessary to protect the life and health of the pregnant person and which are consistent with restrictions placed on other medical procedures involving similar levels of risk.”

  30. mike from iowa 2022-07-05 12:23

    But, the legislature, according to the undue burden ruling, is not supposed to be able to force women to jump through all kinds of hoops to exercise thweir constitutional right to an abortion.

  31. Cory Allen Heidelberger Post author | 2022-07-05 13:28

    Arlo, yes, women should be the sole deciders of their pregnancies and of whom they consult in making that decision.

    But when it comes to law, there’s nothing wrong with men speaking up alongside women in support of just laws recognizing women’s rights and decision-making autonomy.

  32. Cory Allen Heidelberger Post author | 2022-07-05 13:42

    Fair points, Kyle! Writing abortion rights into a state constitution is no easy prospect. Any amendment leaves doors open for further litigation and legislation. But step one is getting the standards that reasonably protected women’s rights for 49 years back on the books.

    I’d love to see multiple initiatives, but practically speaking, how many petitions can one circulator carry? And if they’re initiated laws, they can all disappear at a snap of the Legislature’s fingers. Abortion is an issue on which we absolutely cannot trust the Legislature to respect the will of the people; whatever protections we create, we must enshrine them in the Constitution.

    I’d like to think that a constitutional edict limiting second-trimester restrictions to state regs “reasonably related” to pregnant women’s health would give us enough legal foothold to argue that the state must defer to medically sound practice, not propaganda about their supposed “relationship” with their fetuses. But what else could we say to nail down that protection?

    Kyle, I do like your language on making any restrictions “consistent with restrictions placed on other medical procedures involving similar levels of risk.” Does the “reasonably related” phrase achieve the same thing? Perhaps “reasonably related” means exactly that: doctors dealing with patients faced with similar risks would take similar precautions”?

    One of the merits of this approach is that Roe is more familiar to the public than Casey. Look at all the discourse about the Alito decision: the headlines are all about overturning Roe, not Casey. The above amendment offers the public exactly what I’m saying here: codify Roe v. Wade.

    On trimesters, weeks, and viability: I’m a bit uneasy with the viability standard. Controlling one’s pregnancy is a basic right. Should that right change just because of changes in technology that affect viability? Suppose we developed technology that allowed us to remove a fetus from the womb at any point in the pregnancy and gestate it artificially into a healthy infant. Would that new technology negate a woman’s right to continue or terminate her pregnancy?

  33. Kyle Krause 2022-07-05 16:39


    1) You are right that it needs to be a constitutional amendment. You also certainly know more about the practicalities of circulating petitions.

    2) The constitutional language of “reasonably related” to health and not imposing an “undue burden” has already proven to be insufficient in practice. Prior to Roe being overturned, Rapid City was the middle of the largest abortion care desert in the lower 48 and there were serious and totally unnecessary roadblocks to medication abortion relative to its actual risks.

    3) Most people have no idea what Roe actually said, they simply associate it with the formerly status quo right to legal abortion. Polls show that people’s views on abortion are very messy and often highly contradictory.

    4) Viability certainly has its drawbacks, which is why I’d just suggest 24 weeks. There are other merits to that time as well. For example, physiologically, it is not until a couple weeks after that point that a fetus’s nervous system develops to the point where it could potentially experience consciousness or pain. Most people’s intuitions tell them that aborting a small clump of unrecognizable cells is OK but that killing a viable newborn infant is wrong. It gets messy trying to draw lines in between, but there is a sizeable part of the population that is not comfortable with simply deferring to a right to control one’s pregnancy at later stages.

    I hadn’t looked at it yet, but something playing on the California language in your other post might make good political sense, as it has some appeal to libertarian-minded people. Perhaps something like:

    “The state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion prior to 24 weeks of gestation and their fundamental right to choose or refuse contraceptives. The state shall not restrict the practice of reproductive healthcare providers except to protect the health of the patient in ways which are consistent with the regulation of other healthcare providers providing services involving similar levels of risk.”

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