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Vargo Revises Title and Explanation for Initiative to Restore Right to Abortion in South Dakota

Attorney General Mark Vargo has released his final title and explanation of the initiated amendment to codify Roe v. Wade proposed by Dakotans for Health. Attorney General Vargo’s final title and explanation make five changes from the language of the draft he released August 5. Interestingly, the A.G.’s press release misses perhaps the most significant change, the revision of the title.

The nicely linky press release says, “The amendment is entitled: A Constitutional Amendment Concerning the Regulation of Abortion.” But that’s the August 5 draft title, which the A.G. has thrown out in favor of, “An Initiated Amendment Establishing a Right to Abortion in the State Constitution.”

The final explanation includes four changes:

  1. The first sentence now says the proposed amendment “establishes a constitutional right to abortion and provides a legal framework for the regulation of abortion.” Vargo’s draft statement only said the amendment “establishes a framework for the regulation of abortion.”
  2. The final explanation adds one sentence to the first paragraph: “This framework would override existing laws and regulations concerning abortion.”
  3. In the final explanation, the last paragraph now say, “Judicial clarification of the amendment may be necessary,” whereas the draft explanation referred in that sentence to “Judicial or legislative clarification….”
  4. The final explanation adds one sentence at the end: “The Legislature cannot alter the provisions of a constitutional amendment.”

The second, third, and fourth paragraphs, explaining the trimester standards adopted from the Roe v. Wade ruling, appear unchanged from the draft explanation.

The final title and explanation, which will appear on the initiative petition, circulator handouts, and (if the petition drive succeeds!) the 2024 ballot, will thus read in full as follows:

Title: An Initiated Amendment Establishing a Right to Abortion in the State Constitution.

Explanation:

This initiated amendment establishes a constitutional right to an abortion and provides a legal framework for the regulation of abortion. This framework would override existing laws and regulations concerning abortion.

The amendment establishes that during the first trimester a pregnant woman’s decision to obtain an abortion may not be regulated nor may regulations be imposed on the carrying out 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 thephysical 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 clarilication of the amendment may be necessary. The Legislature cannot alter the provisions of a constitutional amendment [Attorney General Mark Vargo, final title and explanation for proposed initiated amendment to codify Roe v. Wade, submitted to Secretary of State Steve Barnett 2022.08.24].

Attorney General Vargo appears to have rejected all of the biased ideological sandbagging proposed by anti-liberty, anti-woman abortion theocrats during the new public comment period on the AG’s proposed title and explanation. His statement that the amendment “would override existing laws and regulations concerning abortion” may mislead voters into thinking that this amendment would override all abortion statutes on South Dakota’s books: the amendment would certainly override the trigger law banning all abortions except those necessary to save the pregnant woman’s life, but would not necessarily override abortion reporting requirements and other statutes effectively neutralized by the blanket abortion ban but which withstood scrutiny under Roe standards. However, the “override” statement is grammatically correct: there are existing statutes that would not pass muster if South Dakotans restore women’s Roe-era reproductive rights by approving this amendment.

Dakotans for Health may now prepare its formal petition for circulation. Sponsors must submit the petition form and circulator handouts for approval to the Secretary of State. Supporters may not circulate the petition and collect signatures until November 5. Dakotans for Health will then have one year to collect an as yet unknown number of signatures—the petition signature threshold will depend on turnout for this year’s gubernatorial election. The current signature requirement for constitutional amendments is 33,922.

8 Comments

  1. bearcreekbat 2022-08-26

    It certainly appears that the adoption of the Amendment would override the existing South Dakota 1st degree murder statute, with its corresponding potential death penalty, for anyone involved in a 1st trimester pregnancy termination, and for most women, doctors and others involved in a later decision to terminate a pregnancy in the 2nd and 3rd trimesters.

  2. Donald Pay 2022-08-26

    Isn’t requiring a government approved “explanation” be provided to potential signers of the petition forced government speech that violates the First Amendment? I appreciate that his explanation is relatively neutral, but some is speculation. That’s fine for debates on the measure, but the State Government has no business inserting itself in the right of citizens to petition for redress of grievances. They should be able to speak for themselves without the paternalistic government voice of the Attorney General filtering the actual voice of the people.

  3. DaveFN 2022-08-26

    Donald Pay

    Agree.

  4. Jake 2022-08-27

    South Dakota legislator’s attitude: “We like our women to be educated so they can go get a good job ‘out there’ to help out-but “they still can’t be smart enough to make their own decisions on what they can do with their bodies; we’ll determine THAT!!! “WE know best, doggone it!” (Also, “barefoot, in the kitchen, bringin’ me a beer while doin’ the laundry.”)

  5. Jake 2022-08-27

    Donald Pay-good thoughts, but in South Dakota ANYTHING that could pose a threat to the power of the legislature and one-party type of government we have needs to be quashed quickly! Hence, use the power of government to “get our way” with voters that we Republicans have convinced those same voters that only Republicans are against “Big Government”. What a hoot==seeing all the ads Republicans produce about how Democrats are the party of big government, when it is the Republican powered government in SD that has been the dictatorial element for over 40 years. Time for an over-due change; vote Democrat, take us out of the DARK AGES in SD.

  6. grudznick 2022-08-27

    Mr. Jake, what if a slew of conservatives with a common sense flipped to register as a Democratic fellow? And attended and dominated your pathetically attended convention.

  7. Jake 2022-08-27

    Grudz-ain’t gonna happen, friend, your kind’s mentality isn’t quite up to the chase. Also, a “slew” of conservatives with sense? Make me laugh again. Your party today doesn’t know the meaning of the word “conservative” any more, since its love fest with the former occupant of the White House, OUR house.

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