We continue to have a spirited debate over whether South Dakota law as rewritten by the Alito Court will allow prosecutors to charge women who have abortions with first-degree murder. But we do have the assurance of Governor Kristi Noem told reporters in Washington, D.C., yesterday that no matter what the law says, South Dakota will never prosecute any woman for having an abortion, only her doctor:
Noem, who is seen as a possible 2024 Republican presidential candidate or running mate to former President Donald Trump, said she would not support legislation that would prohibit South Dakotan women from seeking abortions in other states.
“I don’t know of any legislators that are seriously pursuing that,” she said, “and I’m certainly not … and to be clear, even in South Dakota, if they were to get an abortion, even though the law doesn’t allow it, a woman would never be prosecuted. It would be the doctor that facilitated it and knowingly broke the law, not the woman” [Jeremiah Poff, “Kristi Noem Says GOP Has ‘Diversity of Opinions’ on Gay Marriage,” Washington Examiner, 2022.07.28].
Governor Noem doesn’t know much about law, so I’m not ready to take her pronouncement as a conclusive reading of South Dakota statute. She seems rather to be leaving women hanging on the slender thread of one governor’s promise rather than relying on the firm rule of law. We need legal clarity, not a fundamentally unhealthy vow to selectively prosecute illegal acts.
And what’s this about legislators not seriously considering restrictions on South Dakota women seeking abortions in other states? Representative Jon Hansen said in May that he wants laws subjecting out-of-state abortion providers to South Dakota’s erstwhile delay and forced-counseling requirements and denying contracts to companies that pay for South Dakota employees to get abortions in other states. Does Governor Noem not know about the legislative agenda of her party’s own incoming Speaker of the House?
Governor Noem seems to be out of touch with the problems in her own laws and the new laws her own party leaders may seek.