Legislative History of South Dakota’s Women’s Health and Human Life Protection Act

An earlier post, South Dakota Governor Expected to Sign HB 1215, The Women’s Health and Human Life Protection Act, prompted requests for additional information. In this post, I identity sources of legislative history for HB 1215. The bill’s legislative history (notwithstanding Justice Scalia’s disdain) will play a crucial role in the litigation strategy of the State when it faces a US Supreme Court challenge over HB 1215. By criminalizing abortion (again) there can be no doubt that the South Dakota legislation was designed for litigation intent on overturning of Roe v. Wade and it’s progeny such as Webster v. Reproductive Health Services, 492 U.S. 490 (1989), and Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833 (1992).

Background

Political Climate: It might be silly for someone living in extreme southwestern Ohio to write about South Dakota’s political will but here I go. Briefly then, Governor Mike Rounds (R) vetoed a similar abortion bill two years but not because he is pro-choice. Oh no, the Governor vetoed that bill because he feared existing state abortion restrictions would be cancelled out and the State would be left with no abortion controls in place while the bill was litigated in the courts. Now, however, the convention wisdom is that he will sign this bill. Under South Dakota law, Governor Rounds has five days from when he receives the bill to decide whether to sign the measure Watch Rep. Roger Hunt, R-Brandon, speak on the likelihood of Gov. Mike Rounds’ signing HB 1215 (Quicktime Video).

On this issue specifically and the Governor’s political standing generally, see Abortion ban rests on Rounds, Governor says he’ll study before signing Angus Leader (Feb. 25, 2006) (Governor states that his Roman Catholicism will play a role in his decision), S.D. Gov. ‘Inclined’ to Sign Abortion Ban Washington Post (Feb. 25, 2006), and A rocky road for Rounds, Popular governor struggles to steer own party (Feb. 26, 2006).

The Governor’s statements make me think he is being cornered by the legislature and pro-life groups who even compare this with domestic violence into doing something he would rather not do, namely criminalizing abortion instead of restricting Roe in piecemeal fashion.

“Personally, I think we will save more lives by continuing to chip away at Roe v. Wade,” he said. “Long-term, I think this court is probably more amenable to restricting the impact of Roe v. Wade on a case-by-case basis and an exception-by-exception basis.

“But in the meantime, this may satisfy a lot of individuals out there who would like to see if there is one slim chance the court may entertain three years from now a direct assault on Roe v. Wade.”

Abortion ban rests on Rounds (Argus Leader) (above). See also S.D. Legislature Clears Abortion Bill to Challenge Roe Washington Post (Feb. 25, 2006)(“Rounds indicated he does not share the view that Alito and Roberts will usher in sudden, dramatic changes in how the court views abortion. He said it could be a drawn-out legal battle, and he noted that it is not even assured that the high court will hear the case.”) and Republican South Dakota governor Michael Rounds, Mathew Staver, president and general counsel of Liberty Counsel and Brigitte Amiri, staff attorney with the American Civil Liberties Union Reproductive Freedom Project joined the ‘Abrams Report’ to debate and discuss HB 1215 (video and text excerpts). I’m siding with the conventional wisdom. I doubt this governor wants to live through a firestorm like the one he created by vetoing similar legislation.

Litigation Funding. Funding the defense of HB 1215 may come from an unusual source. Litigation expense can easily soar beyond $1 million, well beyond the financial means of the State. A truly ingenious solution to this funding crunch is being sought. Pursuant to recently introduced legislation, a “life protection litigation” subfund would be established under the State’s existing extraordinary litigation fund. Private donations could then be deposited into this fund. To quote from the Village Voice, “the well-heeled opponents of abortion are going to hire the public state government to fight their battle.” South Dakota’s Genius Scheme to Outlaw Abortion, Village Voice (Feb. 24, 2006). See also Abortion bill defense sought, House working on legal fund to pay court costs in lawsuit, Argus Leader (Feb. 24, 2006) (also noting that (1) amendments to HB 1215 on both the House and Senate floors to establish a legal fund to collect such donations for a lawsuit failed and (2) rumors of a pledge of $1 million from an anonymous donor have been circulating).

Next step. An injunction of course. Watch Kate Looby, state director of Planned Parenthood, speak on the organization’s plans to challenge HB 1215 in the courts. (Quicktime Video). See also Sizing Up the Opposing Armies in the Coming Abortion Battle New York Times (Feb. 26, 2006)

Legislative History Resources

• Text of Bill (enrolled)(pdf)
• Bill Status includes links to audio files of House and Senate floor proceedings.
• Report of the South Dakota Task Force to Study Abortion (Dec. 17, 2005) (pdf)

Task Force Report. Let there be no doubt that the legislative history sources will include the very controversial Report of the South Dakota Task Force to Study Abortion. Section 1of HB 1215 specifically states that the South Dakota Legislature

“accepts and concurs with the conclusion of the South Dakota Task Force to Study Abortion. …[T]he Legislature finds, based upon the conclusions of the South Dakota Task Force to Study Abortion, and in recognition of the technological advances and medical experience and body of knowledge about abortions produced and made available since the 1973 decision of Roe v. Wade, that to fully protect the rights, interests, and health of the pregnant mother, the rights, interest, and life of her unborn child, and the mother’s fundamental natural intrinsic right to a relationship with her child, abortions in South Dakota should be prohibited.”

The Task Force, created by the South Dakota Legislature, was directed to study:

1. the practice of abortion since its legalization,
2. the body of knowledge concerning the development and behavior of the unborn child which has developed because of technological advances and medical experience since the legalization of abortion,
3. the societal, economic, and ethical impact and effects of legalized abortion,
4. the degree to which decisions to undergo abortions are voluntary and informed,
5. the effect and health risks that undergoing abortions has on the women, including the effects on the women’s physical and mental health, including the delayed onset of cancer, and her subsequent life and socioeconomic experiences,
6. the nature of the relationship between a pregnant woman and her unborn child,
7. whether abortion is a workable method for the pregnant woman to waive her rights to a relationship with the child,
8. whether the unborn child is capable of experiencing physical pain,
9. whether the need exists for additional protections of the rights of pregnant women contemplating abortion, and
10. whether there is any interest of the state or the mother or the child which would justify changing the laws relative to abortion.

Composition of the Task Force. Governor Rounds appointed Dr. Marty Allison, Dr. Maria Bell, Travis Benson. J.D., Dr. Allen Unruh, and Dr. David Wachs to the Task Force; Representative Matt Michels, Speaker of the House, appointed David Day, J.D., Ms. Linda Holcomb, Representative Roger Hunt, Representative Elizabeth Kraus, Ms. Kate Looby, and Representative Kathy Miles; and Senator Lee Schoenbeck, President Pro Tempore of the Senate, appointed Senator Stanford Adelstein, Senator Julie Bartling, Senator Jay Duenwald, Senator Brock Greenfield, Dr. John Stransky, and Senator Theresa Two Bulls.

Head Count. “[O]f the 17 task force members, only two were pro-choice (State Sen. Stan Adelstein and Planned Parenthood’s Kate Looby). Among the other members are a representative of the Catholic Diocese of Sioux Falls, seven anti-choice state legislators, and a chiropractor whose wife runs the largest ‘crisis pregnancy center’ in the state. The pro-choicers were not allowed to submit a minority report.” See South Dakota task force recommends abortion ban (Dec. 14, 2005). To this I add that there may have been a third pro-choice member, namely, Senator Theresa Two Bulls who voted against HB 1215. (Of course, Senator Two Bulls could have been neutral or pro-life while voting against this bill. The state of either/or issues is such that they rarely live room for individuality.)

Another report observed that four members are medical doctors (only one an OB/GYN). This story reports that Dr. Marty Allison, Chair, voted against the report’s recommendations, Dr. Maria Bell, Vice Chair, walked out before the final vote as did Senator Stanford Adelstein (R-Rapid City). See The South Dakota Task Force to Study Abortions Report (Dec. 17, 2005) (recommended reading for background information). See also State Facts About Abortion for South Dakota, compiled by the Guttmacher Institute.

Conclusion

Court filings and secondary literature will explode when/if Governor Rounds signs HB 1215 into law. Please feel free to use the comment function for this post to add links to addition resources. And notwithstanding my personal views, comments for and against the issue as it relates to this Act will be published as long as the tenor of the comment remains civil. What is civility? Civility is something my conservative, pro-life, Ohio Republican wife and I practice. Crazies go elsewhere.