Public Comment on AG’s Explanation of Abortion Amendment Mostly Misdirected or Misleading

South Dakotans may generally support the right to abortion, but if the comments submitted to the Attorney General on his draft explanation of a proposed ballot measure to codify Roe v. Wade reflected the will of the electorate, an abortion-rights amendment would go down in flames.

On August 5, Attorney General Mark Vargo released the first draft of his explanation of the initiated amendment proposed by Dakotans for Health to restore the trimester standards for government regulation of abortion in South Dakota. In olden times, that draft would have been the AG’s final word, and the sponsors of the amendment would have placed that explanation on their petition and gone to work getting ready to collect signatures. But a relatively new and wacky dilatory law that the Legislature passed in 2021 makes petitioners wait another 20 days while the AG takes and considers public comment on that explanation in drafting a final version.

According to the Attorney General’s ballot measure webpage, eleven parties submitted comment on Vargo’s explanation. Nine of them want a rewrite that sandbags the amendment and makes opponents’s case.

I’ll get to those sandbag arguments in a moment. But first, I want to note that the comments reveal some confusion about the purpose of this public comment period. SDCL 12-13-25.1 as amended in 2021 directs the AG to post his draft statement for comment. The ballot measure itself is not up for discussion. But many of the comments exceed the limited purpose of the public comment period and the Attorney General’s explanation and discuss the amendment itself.

The three proponents of the amendment are most guilty of this error. Suzan Nolan and Beth Walz Davis write in support of the right to abortion. They say the proposed amendment “does not go far enough to protect the right of women to have agency over their bodies.” They “respectfully request that the language be amended to protect the rights of women to choose an abortion throughout the term of their pregnancies.” Unfortunately, that request must fall on deaf ears: the Attorney General does not write the ballot measure. The Attorney General only writes the explanation, and a request for to revise the amendment can have no impact on his performance of his duty to write an objective explanation of the amendment as drafted by its sponsors.

Mary E. Willock, a nurse from Lynwood, Washington, also supports women’s right to control their bodies and their pregnancies. But she also incorrectly writes, “I understand you are taking public comment on the ballot proposal on abortion” and recommends that the initiative “include provision that a women could have a termination of pregnancy for fetal demise as well as a fetal anomalies (incompatible with life).” Again, it appears the Attorney General needs to make clear that he is not taking comment on the initiative itself and that he has no authority to rewrite the initiative for the sponsors.

John and Mary Baldridge of Pierre confuse the AG’s explanation, which Vargo must prepare now to appear on the initiative petition and circulator handouts, with the ballot recitation, which Marty Jackley will have to prepare by May 2024 if this amendment qualifies for the 2024 ballot. In their “passionate response to the most obvious and very Democratically/Planned Parenthood type of laced language for this Proposed Amendment from your website,” the Baldridges propose this recitation:

A YES vote would reverse the Trigger Law of 2005 and change the current law to allow more abortions in South Dakota….

A NO vote to this Amendment would reject any changes to the current Trigger Law of 2005 that was activated with the reversal of Roe v. Wade and is currently in place as law. This vote would keep Governor Noem’s position in place that South Dakota would be one of the most Abortion Free states in America [John and Mary Baldridge, email to Attorney General Mark Vargo: “Draft Ballot Explanation Submission,” 2022.08.11].

The Baldridges’ biased explanation gives far less detail about the proposed amendment than Vargo’s objective draft explanation. It is also legally and thematically inappropriate: the AG’s explanation is intended for the petition, the signing of which is not a “vote” for or against the initiative but a statement that the signer wants the chance to vote on the measure in 2024. The Baldridges are writing the recitation they want every voter to see on the 2024 ballot… which means they can’t include “Governor Noem” yet, as, come 2024, South Dakota may have a different Governor.

The extremist malarkey artists at the DC-based Charlotte Lozier Institute send AG Vargo six pages of bad medicine and other propaganda that would not fit in the explanation that statute limits to 200 words. No matter how contrived or dubious, the Lozier Institute’s claims about medical procedures, maternal death, and fetal development also have no place in an explanation that is required to “educate the voters of the purpose and effect” of the proposed initiative and “the legal consequences… including the likely exposure of the state to liability” if voters adopt the initiative. Like the Baldridges with their appeal to Noem’s political posturing, the Lozier lobbyists aren’t proposing an objective explanation; they are making arguments to persuade voters.

Natalie Hejran of Washington, DC, writing as staff counsel for Americans United for Life, does focus more on the explanation, saying Vargo’s text is “misleading, since it states only that the resolution would provide a ‘framework’ by which abortion would be regulated, without mentioning that it would vitiate much of South Dakota’s abortion legislation.” Herjan then explains the amendment in language that emphasizes her organization’s political preference rather than hewing to the simple, objective line that the AG’s explanation is required by law to follow. Herjan then goes fully off track in her conclusion, saying, “South Dakotans want to continue their strong efforts in protecting life. The proposed constitutional amendment does the opposite and must be rejected.” That statement is (1) amusing, coming from a Beltway lobbyist not in South Dakota, (2) arguably incorrect, according to the new poll from Mason-Dixon, and, most importantly for our purposes here, (3) irrelevant to the point of the public comment the Attorney General is required to take at this point in the initiative process. The claim from a partisan that an amendment “must be rejected” cannot have any bearing on the “objective, clear, and simple summary” that the law directs the AG to prepare for each amendment.

The other commenters do a better job of focusing their recommendations on changing the Attorney General’s explanation… but they are all out to rig the explanation to encourage people to reject the amendment. Anti-abortion Senator Al Novstrup and Representative Fred Deutsch claim that Vargo’s factual statement that “This constitutional amendment establishes a framework for the regulation of abortion” is “misleading“:

This amendment to the state constitution would create a new constitutional right, a right to have an abortion where no such right currently exists under the state constitution or the U.S. Constitution.

The A.G.’s explanation should clearly state that “this constitutional amendment establishes a new right to have an abortion.”

…The way the introduction is currently phrased may mislead the reader into believing that the amendment actually extends to the legislaature a new power to regulate, a power that it currently has and which the constitutional amendment would revoke [Senator Al Novstrup and Representative Fred Deutsch, letter to Attorney General Mark Vargo, 2022.08.15].

That sounds like Senator Novstrup’s usual word games. The right created by this amendment is not new. South Dakotans and Americans had this right for 49 years; this right was just revoked eight weeks ago. Most properly speaking, the amendment restores the right to abortion that the Alito Court and state law just took away.

Furthermore, Novstrup and Deutsch concoct their “misleading” argument by separating one sentence of Vargo’s draft from the entire explanation he offers. The first sentence of Vargo’s explanation accurately states that the proposed amendment creates a framework for regulating abortion; Vargo then accurately describes that framework. The explanation functions as a paragraph, with a topic sentence at the start and supporting details that follow. Novstrup and Deutsch are pretending they can clip a topic sentence out of its context, view it in isolation, and brand it Misleading! because it lacks the supporting details that they themselves have clipped off. That, dear readers, is the real misleading.

Deutsch and Novstrup also append their names to an August 15 email from Representative Bethany Soye and 16 other right-wing Republican legislators who complain that the proposed amendment would “undo decades of work”:

Michael G. Pauley, executive director of the South Dakota Catholic Conference, targets Vargo’s title, “A Constitutional Amendment Concerning the Regulation of Abortion.” The Catholic Conference says that title could mislead voters by making them think the amendment’s purpose is to regulate abortion rather than deregulate it. They would prefer Vargo label the amendment, “A Constitutional Amendment to legalize the intentional termination of a human being’s life in the uterus by means of abortion.” The Catholic Conference further complains that the amendment does not simply establish a regulatory framework but overturns the framework South Dakota developed over the last 50 years. The Catholic Conference also demands that the explanation adopt the rhetorical and ideologically misogynist bias of the Catholics and other anti-abortion advocates: “…[T]he explanatory language should accurately describe the class of human beings who are most affected by the terms of the proposed amendment…. The explanatory language should always make the preborn child the focus when describing the effects of the proposed amendment.” Note that perspective, women: while the language of the amendment centers women and their rights, the Catholic Conference wants to push women out of the discussion and focus solely on fetuses, whose designation as “preborn child” is a political marketing label, not an objective fact.

South Dakota Right to Life expresses “deep concern” over the title and explanation. They echo the Republican legislators and the Catholics in their concern that the amendment overrides rather than merely establishes a regulatory framework. SDRTL also contends that Vargo’s statement that “judicial or legislative clarification of the amendment may be necessary” may confuse and mislead voters “because it might lead to the conclusion that this measure can be amended or modified by the legislature.” Perhaps SDRTL is confused: Vargo said “clarification”, not “amendment or modification”. SDRTL also claims that Vargo’s “clarification” statement “might also lead voters to believe that the confusing phrases contained in the amendment can be clarified or defined by legislative action.” The phrases in the proposed amendment are not confusing—they are written in reasonably simple, straightforward language—but if legislators perceive any confusion, they really can clarify and define terms that are left unclear by the state constitution. SDRTL thus appears to be more inclined to mislead and confuse voters than Attorney General Vargo.

Norman Woods, director of South Dakota’s Family Heritage Alliance Action, makes clear that his group “will be working hard to oppose this measure.” Woods says “the tone and working” (I suspect he means wording) of Vargo’s explanation “struck me as written by someone who is pro-abortion…. [T]he wording comes across as favorable towards the measure.” I find no basis for that assertion in Vargo’s words; Vargo simply and objectively states the extent to which the state would be able to regulate or restrict abortion in each trimester of pregnancy.

Yet, interestingly, Woods doesn’t propose loading the explanation with language about killing babies or undoing legislators’ fine work. He suggests mostly innocuous rewordings that add little explanatory power to Vargo’s first draft. Woods’s most substantive suggestion is that the Attorney General state that “This amendment would place into our constitution a framework of abortion policies similar to the Roe v. Wade decision of 1973.” The language of the proposed amendment does come directly from the language Justice Blackmun used in that landmark 1973. However, while Roe v. Wade is a well-known Supreme Court opinion, Vargo may have avoided that explicit legal citation to avoid presuming that every voter has read Roe v. Wade and knows exactly what that ruling says. Voters may generally understand that “codify Roe v. Wade” is a call for returning to the status quo ante Alito, but citing a now-overturned legal precedent may not make as clear to first-glance readers the intent of the amendment as Vargo’s straightforward, legalese-free explanation of the actual content of the amendment.

Beltway-based Susan B. Anthony Pro-Life America and American Center for Law and Justice Action Inc. says Vargo’s explanation fails to “reflect[…] the magnitude of this initiative’s change to South Dakota’s law.” SBAPLA/ACLJAI list many statutes from SDCL Chapter 34-23A which they say this amendment would invalidate or significantly limit in scope. The lobbyists do not mention that, while those statutes remain on the books, the Alito Court and our trigger law have rendered all of those statutes practically ineffective. They nonetheless recommend that the Attorney General cram as many of their favorite abortion restrictions into the explanation as examples of what they say this amendment would block, even though which specific statutes would remain in effect would depend on the judicial and legislative clarification that Vargo mentions in his original explanation. SBAPLA/ACLJAI thus seems to be asking Vargo to go beyond explaining the amendment to litigating it on the petition.

Overall, the comments submitted don’t provide much help for the Attorney General in carrying out his statutory duty. The few commenters who support the amendment provide comments that might help the sponsors of the amendment but don’t mention anything that can go in the AG’s explanation. The more numerous opponents mostly seek to change the “objective, clear, and simple summary” AG Vargo has written with political propaganda supporting their position.