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Vargo Issues Draft Explanation of Abortion-Rights Initiative, Invites Public Comment

Attorney General Mark Vargo has written his first statewide ballot question title and explanation. Today A.G. Vargo released his draft (more on that in a moment) title and explanation for the initiated amendment proposed by Dakotans for Health to codify Roe v. Wade in the South Dakota Constitution.

First, here’s the text of the initiated amendment:

That Article VI of the Constitution of the State of South Dakota be amended by adding a NEW SECTION:

Before the end of the first trimester, the State may not regulate a pregnant woman’s abortion decision and its effectuation, which must be left to the judgment of the pregnant woman.

After the end of the first trimester and until the end of the second trimester, the State may regulate the pregnant woman’s abortion decision and its effectuation only in ways that are reasonably related to the physical health of the pregnant woman.

After the end of the second trimester, the State may regulate or prohibit abortion, except when abortion is necessary, in the medical judgment of the woman’s physician, to preserve the life or health of the pregnant woman [proposed constitutional amendment, submitted by Dakotans for Health to the Attorney General 2022.06.23].

A.G. Vargo would title this initiative “A Constitutional Amendment Concerning the Regulation of Abortion.” He would provide this explanation, which state law would require be provided to any voter signing the petition to place this initiative on the 2024 ballot:

This constitutional amendment establishes a framework for the regulation of abortion.

The amendment establishes that during the first trimester a pregnant woman’ decision to obtain an abortion may not be regulated nor may regulations be imposed on the carrying our of an abortion.

In the second trimester, the amendment allows the regulation of a pregnant woman’s abortion decision, and the regulation of carrying out an abortion. Any regulation of a pregnant woman’s abortion decision, or of an abortion, during the second trimester must be reasonably related to the physical health of the pregnant woman.

In the third trimester, the amendment allows the regulation or prohibition of abortion except in those cases where the abortion is necessary to preserve the life or health of the pregnant woman. Whether an abortion is necessary during the third trimester must be determined by the pregnant woman’s physician according to the physician’s medical judgment.

Judicial or legislative clarification of the amendment may be necessary [Attorney General Mark Vargo, draft title and explanation for proposed initiated amendment, submitted to Secretary of State Steve Barnett 2022.08.04].

The Attorney General’s office had 60 days to compose and publish this draft. Vargo did so in 43 days—actually, 38 days, since he didn’t get the job until five days after the Office of the A.G. received the initiative, and he had to spend the first couple days firing idiots. Not bad.

Now as recently as two years ago, the sponsors of this measure could have taken this title and explanation, framed it with their amendment language on their petition and circulator handouts, and submitted their final initiative documents to the Secretary of State for approval this afternoon. But in 2021, the Legislature (including inattentive Democrats) decided to throw another 20 days of delay into the initiative process by requiring a public comment period on the Attorney General’s explanation. Note that the state isn’t taking public comment on the amendment itself—I recommended such potentially helpful public participation in 2021, but to no avail. For ten days, we wait while interested parties comment not on Dakotans for Health’s proposal but on A.G. Vargo’s explanation thereof. Then A.G. Vargo has ten days to produce his final draft of his title and explanation.

The Codify-Roe amendment is the first ballot measure to legally undergo this strange public-comment-on-AG’s-explanation process. Impeached killer Jason Ravnsborg incorrectly applied the process to composing his official ballot statement for Amendment C last November. That illegal process still drew five public comments, four of which Ravnsborg apparently ignored. Vargo is properly applying the public-comment period to his title and explanation for this citizen initiative.

The Attorney General will accept public comment on his title and explanation by hand, mail, or email through Monday, August 15. He must then deliver his final text by August 24.


  1. John 2022-08-05 18:56

    It’s a breath of fresh air having a sliver of competence in the SD executive branch. I only wish that Vargo were holding the job for 4 years.
    Jackley previously showed himself as a partisan jackal, freely wasting the state’s money on frivolous appeals of federal laws, executive orders, and regulations.

  2. larry kurtz 2022-08-05 19:13

    Again, even if this amendment passes the legislature will nullify it or the governor will sue to abort it or both.

  3. DaveFN 2022-08-05 22:34

    You’re too generous, Cory.

    You yourself could have drawn up that title and explanation in under 15 seconds flat.

  4. Donald Pay 2022-08-06 09:13

    I’ll provide my opinion, which is just as good or better than the AG’s. I’m glad he is putting this out as a draft, because I think it needs to be tightened up, although, perhaps the proposed amendment could be tightened up. Maybe I’m wrong, but his opinion seems rather loosely drawn.

    The AG’s opinion could give the impression, not present, in my opinion, in the wording of the proposed amendment, that there can be no regulation of the medical aspects of the abortion in the first trimester. His opinion may, for example, be extrapolated to mean that “back alley” abortions performed in unsanitary conditions by unqualified fake “doctors” would be allowed. I doubt this is what is meant by the proposed amendment’s wording. My understanding is that this is aimed at the woman’s decision process, not at normal practice of medicine. However, the medical regulatory process has to be related to actual standards of practice in medicine, and not designed to influence or hinder the woman’s decision. Such things as 24-hour waiting periods are not all related at all to medical practice.

  5. Richard Schriever 2022-08-14 09:39

    I read it as allowing the legislature to regulate ONLY things related to the practice of medicine relates to the woman’s health. That would be such things as whether anyone other to a licensed physician can provide any services at any stage.

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