KELO-TV reminds us that Dakotans for Health plans to give South Dakota voters a chance to vote for a third time to protect women’s right to abortion:
“The amendment itself is nothing more or less than the codification of Roe v. Wade,” co-founder, Rick Weiland told life, liberty, and the News over the phone on Wednesday.
…If placed on the ballot, it won’t be the first time South Dakota voters will have a chance to determine access to abortion in South Dakota. In 2006, the legislature passed a law outlawing abortions that was signed by then-Governor Mike Rounds.
That November, voters rejected the ban 56-44.
Later, in 2008, another bill passed the legislature to ban abortions in South Dakota. Again, a measure was placed on the ballot and voters rejected the ban once again 55-45.
“So, there’s a history,” Weiland said. “And I would argue that it’s probably when you have a right guaranteed by the highest court of the land taken away, which is what happened to Roe v. Wade. I think there are a lot of people that have just come to expect that they would have some choices. And those choices were taken away.”
…The goal is to begin collecting signatures starting on November 5, 2022 and conclude in November of 2023 [Jazzmine Jackson, “Dakotans for Health Wants to Put Abortion on 2024 Ballot,” KELO-TV, 2022.08.03].
The good people of Kansas just voted Tuesday to leave the right to abortion in their constitution. The amendment they rejected wold have declared, “…the constitution of the state of Kansas does not require government funding of abortion and does not create or secure a right to abortion.” That amendment was Republican legislators’ response to a 2019 Kansas Supreme Court ruling—Hodes & Nauser v. Schmidt—that said the Kansas Constitution does protect women’s access to abortion:
Today, the court concluded Section 1 of the Kansas Constitution Bill of Rights, which states that “[a]ll men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness,” protects a woman’s right to decide whether to continue a pregnancy. The court looked at the historical record surrounding the people’s ratification of Section 1 and concluded the drafters and ratifiers meant for Section 1 to protect every person’s right to personal autonomy—and this right enables a woman to make decisions regarding her body, health, family formation, and family life, including the decision whether to continue a pregnancy. The court further concluded this right to personal autonomy is fundamental and governmental regulation of abortion is constitutional only if it passes a test of strict scrutiny. Passing this test requires a compelling government interest and government action that is narrowly tailored to that interest [Kansas Judicial Branch, press release, 2019.04.26].
Note that, like the United States Constitution before Justice Alito and the theocracy got their hands on it, the Kansas Constitution protects the right to abortion without actually saying the word abortion.
The same is true in Minnesota, where just last month, after the Alito Court threw decisions about the right to abortion back to the states, Minnesota District Court Judge Thomas A Gilligan, Jr., took that state’s right and declared that, Dobbs be darned, Minnesota’s Constitution still protects women’s right to abortion, even though the Minnesota Constitution doesn’t mention abortion. Judge Gilligan’s decision in Doe v. Minnesota overturned a raft of Minnesota restrictions on abortion—only physicians could perform abortions, abortions could only be performed in hospitals, only physicians could recite to women the medically incorrect propaganda mandated by the legislature, women had to wait 24 hours to get an abortion, both parents had to be notified if their minor child sought an abortion—because they violated the fundamental right to privacy, which encompasses reproductive decision-making, established by the Minnesota Supreme Court in the 1995 Doe v. Gomez case. The Minnesota Constitution doesn’t mention privacy, either, but the Gomez Court followed previous case law that found the right to privacy in Sections 1, 2, 7, and 10 of Article 1, Minnesota’s Bill of Rights. Those sections read as follows; I highlight the portions Minnesota’s Supreme Court finds relevant to privacy and abortion:
Section 1. Object of government. Government is instituted for the security, benefit and protection of the people, in whom all political power is inherent, together with the right to alter, modify or reform government whenever required by the public good.
Sec. 2. Rights and privileges. No member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers. There shall be neither slavery nor involuntary servitude in the state otherwise than as punishment for a crime of which the party has been convicted.
Sec. 7. Due process; prosecutions; double jeopardy; self-incrimination; bail; habeas corpus. No person shall be held to answer for a criminal offense without due process of law, and no person shall be put twice in jeopardy of punishment for the same offense, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law. All persons before conviction shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great. The privilege of the writ of habeas corpus shall not be suspended unless the public safety requires it in case of rebellion or invasion.
Sec. 10. Unreasonable searches and seizures prohibited. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized [Minnesota Constitution, Article 1: Bill of Rights, adopted 1857.10.13, generally revised 1974.11.05].
You can read Gomez 1995 and Doe v. Minnesota 2022 for the judicial reasoning that gets Minnesota from that language to privacy to abortion, as you can read Hodes & Nauser v. Schmidt 2019 to see how Kansas gets from “equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness” to the same pro-choice conclusion. But the important point is that that simple language, without mentioning abortion, as convinced judges in two nearby states that women have a right to control and, if they wish, end their pregnancies.
South Dakota’s constitution has very similar language:
§ 1. Inherent rights. All men are born equally free and independent, and have certain inherent rights, among which are those of enjoying and defending life and liberty, of acquiring and protecting property and the pursuit of happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.
§ 2. Due process–Right to work. No person shall be deprived of life, liberty or property without due process of law. The right of persons to work shall not be denied or abridged on account of membership or nonmembership in any labor union, or labor organization.
§ 11. Search and seizure. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause supported by affidavit, particularly describing the place to be searched and the person or thing to be seized.
§ 26. Power inherent in people–Alteration in form of government–Inseparable part of Union. All political power is inherent in the people, and all free government is founded on their authority, and is instituted for their equal protection and benefit, and they have the right in lawful and constituted methods to alter or reform their forms of government in such manner as they may think proper. And the state of South Dakota is an inseparable part of the American Union and the Constitution of the United States is the supreme law of the land [South Dakota Constitution, Article 6: Bill of Rights, retrieved 2022.08.04].
I am not aware of any recent South Dakota Supreme Court rulings in which our justices have analyzed South Dakota’s constitutional provisions for a right to privacy that progenits a right to abortion. (One South Dakota case that Googles up, a 1996 case dealing with wrongful fetal death and chicken cordon bleu, discusses the rights to abortion and privacy but seats them in the federal cases of Casey 1992 and Roe 1973, which the Alito Court has reversed.) But the constitutional language that Kansas and Minnesota judges cite as the basis for rights to privacy and abortion appears in very similar form in South Dakota’s constitution.
Is it possible that South Dakotans already have a right to abortion under the South Dakota Constitution and just don’t know it yet?
I’m not confident about that conclusion. If South Dakota’s courts haven’t already analyzed what protection of privacy and abortion our state constitution offers independently of the federal constitution, a case brought now to test that proposition would be heard by Republican judges appointed by anti-abortion governors. Judge Gilligan in Minnesota and a five of the six Kansas justices who upheld women’s right to abortion in 2019 were Democratic appointees. Absent some binding precedent (and Alito and the Trump picks have proven no precedent is binding), a case arguing a fundamental right to abortion under the South Dakota Constitution in front of South Dakota judges would be a crap shoot.
An amendment codifying Roe v. Wade, explicitly stating that women have a right to abortion, would remove that uncertainty. But Kansas and Minnesota show us that the South Dakota Constitution may already protect the right to abortion… if we could just find the right judges in our state to say so.