South Dakota Bill Would Ban Almost All Abortions, Challenge Roe v. Wade
by Steven Ertelt
January 23, 2004
Pierre, SD (LifeNews.com) — A pro-life legal center has teamed up with a South Dakota state legislator to introduce legislation that would ban virtually all abortions.
With legal assistance from the Michigan-based Thomas More Law Center, state Rep. Matt McCaulley (R) introduced a bill that makes abortion a crime unless it is necessary to save the life of the mother.
Some 47 representatives and 18 state senators have already co-sponsored the legislation.
McCaulley, of Sioux Falls, said the legislation defines life beginning at conception and seeks to challenge the notion in Roe that the court did not know when life begins.
Richard Thompson, President and Chief Counsel of the Thomas More Law Center, said, "House Bill 1191, which already has the support of a majority in the state house and senate, directly confronts the 1973 Supreme Court decision in Roe v. Wade."
But that may be the problem.
Thompson acknowledged that the legislation, even if passed by the state legislature and signed by the governor, will definitely be challenged by a lawsuit. That lawsuit will ultimately end up at the Supreme Court, where a pro-abortion majority will almost certainly strike it down as unconstitutional.
Overturning Roe has always been a primary goal of the pro-life movement, but two leading pro-life attorneys told LifeNews.com that this is the right legislation at the wrong time. A pro-life majority must be established on the Supreme Court first before such legislation has a chance of becoming law and overturning Roe.
Thompson said, however, that pro-life advocates much challenge the decision now, regardless of the makeup of the court.
"Roe v. Wade was an exercise of raw judicial power, not based on any reasonable interpretation of the Constitutional text," Thompson said.
"The Roe decision carries the same moral implications as the Dredd Scott decision that upheld slavery by regarding a segment of our population as non-persons. The Court was wrong then, and the court is wrong now. We have a moral responsibility to confront this lawless decision whenever the opportunity presents itself."
Kate Looby, state director of Planned Parenthood of Minnesota/South Dakota, confirmed that her group would challenge the legislation in court if passed.
"Lawyers I’ve talked to said it has no chance of being upheld in court," Looby said.
Representative McCaulley cited the limitations of the Roe decision commenting, "Medical and scientific discoveries over the last 30 years have confirmed that life begins at conception, a question the Roe Court said they could not answer."
The bill provides for exceptions to protect the life of the mother if birth or continued pregnancy constitutes a clear and immediate threat of death to the mother or serious risk of the substantial and irreversible impairment of a major bodily function.
Gov. Mike Rounds, who opposes abortion, would not say if he would sign the measure, adding that he has not yet reviewed the legislation.
The bill would make the crime of performing an abortion punishable by up to 5 years in state prison.
In 2002, 826 abortions were performed in South Dakota and the Planned Parenthood business in Sioux Falls performed 815 of them.
A copy of this bill can be found at