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South Dakota Bill of Rights Very Similar to Provisions that Protect Right to Abortion in Kansas and Minnesota

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.

14 Comments

  1. bearcreekbat 2022-08-04

    Given the decisions in Kansas and Minnesota it would certainly be worth a try in South Dakota. I note that in a 4th Amendment context the SD Supreme uses this test to determined whether government conduct violates an individual prote3cted right to privacy: Does the individual have a (1) “subjective expectation of privacy” )2) “that society would recognize as reasonable.” State v. Jones.

    https://ujs.sd.gov/uploads/sc/opinions/27739.pdf

    After 50 years of a woman’s constitutionly protected right of privacy in reproduction matters it would seem that in South Dakota an individual certainly has, in fact, a “subjective expectation of privacy” in that right of privacy. And it seems that given this history “society would recognize [that subjective expectation] as reasonable.”

  2. Francis Schaffer 2022-08-04

    bearcreekbat,
    My thought, since most women in the US of child bearing age have known no other system the test is more than reasonable – it used to be the law.

  3. bearcreekbat 2022-08-04

    Exactly Francis.

  4. Cory Allen Heidelberger Post author | 2022-08-04

    BCB, That’s an interesting two prong test for privacy. Could we satisfy the second criterion, societies recognition of that aspect of privacy, by citing the 2006 and 2008 votes against abortion bans?

  5. bearcreekbat 2022-08-04

    Cory, those election results strike me as strong evidence of society’s recognition of a subjective expectation of a right to privacy in intimate and personal family planning decisions and that the subjective expectation of that right is reasonable.

  6. Cory Allen Heidelberger Post author | 2022-08-04

    BCB, it seems there are at least a couple kinds of privacy. One kind of privacy (which we might invoke in this discussion if we talk about laws that force women to disclose their pregnancies and their sexual and medical histories) involves preventing disclosure of our personal information. Another kind of privacy (the one that protects abortion rights more directly) involves preventing government intrusions on our private decisions. I don’t know if these terms have any legal weight, but does the two-prong test you describe apply equally to questions of information privacy and questions of decision privacy?

  7. All Mammal 2022-08-04

    The government restrictions on what a woman is ‘allowed’ to legally do with her body needs to have the same opposite but equal equivalent when it comes to banning men and their choices they make with their bodies.
    Should it be a crime for a man to ejaculate anywhere other than the Lord’s intended vessel and for His single intention of procreation? Any man guilty of punching his clown should be charged with the same offense as abortion. Technically that charge could be multiplied by millions.. Just kidding. That’s crazy. Nobody wants to count every murdered spermatozoa.

  8. bearcreekbat 2022-08-04

    Cory, No the two pronged test was set out in a privacy analysis under the 4th Amendment right to be free from unreasonable searches and seizures, which is more akin to your example regarding a pregnant woman being required to disclose information about her pregnancy. The facts of the case I cited involved police putting up a camera in a public to record the defendant’s activities in a drug investigation. The SD Supreme Court acknowledged that normally people have no right of privacy in public settings, but then focused on whether defendant reasonably believed he was protected from constant police surveillance, applying the test I described.

    Thus, the family planning right to privacy legal argument would have to be that by analogy a similar test should be used in other areas beyond search and seizure, where there is a subjective belief that the individual’s right of privacy extends intimate family planning decisions, such as a woman’s choice whether to get pregnant, and whether she is permitted by the government to continue that pregnancy, or end the pregnancy early. For example, without a constitutionally protected right of privacy I can see nothing that would prevent the government from enacting laws requiring mandatory abortions or sterilzations. So this is indeed a two edged sword once the government has free reign over family planning decisions.

  9. Loy hamm 2022-08-04

    The argument that abortion is not mentioned in the constitution is not surprising since at the time the constitution was written, women were the property of their father until they became the property of their husband. They were not able to own property nor could they cast a ballot to vote. However the status of men of color was mentioned. They were considered to be 3/5/of a citizen with no voting privileges. Also, mixed race marriage was not only illegal but also a crime.

  10. Ryan 2022-08-06

    It just needs to be codified by now. Enough with the games and trying to read the right to abort into vague constitutions. Just codify it so it’s clear and we can all move on again. Some people want to play silly games like suggesting women go on sex strikes or mandating vasectomies for males. Nonsense. Just codify the right to abort already. There is no persuasive male equivalent because men don’t get pregnant and can’t have abortions. Sperm aren’t embryos or fetuses. Pretending that something different is the same doesn’t help anybody.

  11. bearcreekbat 2022-08-07

    While “just” codifying a right of privacy is certainly a great idea, it still may be helpful to have a fall back position to defend women and medical providers that might find themselves in the target of an enthusiastic prosecutor before the codification of the right can be accomplished. For example, as I understand the effort to codify such a right in the SD Constitution by the current initiative, that vote, if the petition gathering is succcessful, is still about 2 years away – 2024. And if that fails there may be a substantial additional delay in electing enough representatives that will vote to codify the right.

    Meanwhile, for those medical providers charged with a Class 6 felony and for those women and their medical providers charged with 1st degree murder (who will face mandatory life in prison or the death sentence), it really does seem urgent to explore the language in our current state Constitution that is similar to language from other states that have found an existing constitutional right of privacy. Finding that language and formulating a logical legal argument in support of that right could provide a legitimate defense against such criminal charges. And while there might be some hope for jury nullification as Jay Davis implied in his analysis, a legitimate legal defense would be more conclusive and avoid the threat of a retrial.

  12. Janet Evans 2022-08-07

    Mark Vargo is way off base on his proposed
    constitutional ammendment. Get government out of the trimester language period. Abortion is and should be a decision
    between a doctor and his/her patient. We want the Equal Rights Ammendment ratified.
    Equal rights to all women! This AG is so far off base; he is tagged, out.

  13. Richard Schriever 2022-08-14

    What “due process” is involved in a forced examination of one’s internal organs via an ultrasound?

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