Makenzie Huber, South Dakota Searchlight
Opponents of Amendment G say it’s an extreme measure that would allow unrestricted and unregulated access to abortion. Supporters say it would restore broadly supported and safe abortion rights that stood for 49 years prior to 2022.
The state constitutional amendment is one of seven questions on South Dakota’s Nov. 5 general election ballot. Two of the most visible people in the Amendment G campaign are anti-abortion activist Caroline Woods and abortion-rights supporter Nancy Turbak Berry.
When they debated last month in Mitchell, Woods argued the amendment’s wording would allow abortion up to birth. That’s because the amendment would allow the state to enact a third-trimester abortion ban but would require an exception when a physician determines an abortion is necessary to preserve the “life or health of the pregnant woman.”
Woods pointed to the U.S. Supreme Court’s 1973 decision in Doe v. Bolton, which said a physician assessing a pregnant woman’s health may take into account all factors relevant to her wellbeing — “physical, emotional, psychological, familial, and the woman’s age.”
“This means for nearly any reason, an abortion doctor can justify an abortion,” Woods said.
Turbak Berry countered that South Dakotans lived under the Supreme Court’s definition of health for nearly 50 years until the state banned abortion in 2022.
“Abortion up to birth is a slogan, not a reality,” Turbak Berry said. “If a woman is approaching term and for some reason can’t continue pregnancy, the doctor doesn’t abort the fetus — they deliver the baby.”
When most abortions occur
Babies are generally considered viable — able to survive outside the womb — as they near the third trimester (27 weeks of gestation), but other factors can impact survivability, leading to earlier or later viability. The U.S. Supreme Court’s 1973 Roe v. Wade decision that established nationwide abortion rights allowed for bans after viability, unless an abortion is necessary to preserve the life or health of the mother.
The vast majority of abortions in the United States, according to the Pew Research Center, occur in the first trimester. In 2020, 93% of abortions occurred in the first trimester. About 1% were performed at 21 weeks or more of gestation. Gestation lasts 40 weeks.
On average, 92.3% of abortions in South Dakota between 2014 and 2022 occurred in the first trimester of pregnancy.
The state Department of Health’s annual abortion report did not separate abortions by gestational age in the second and third trimesters. Between 2014 and 2019, an average of 33 women a year terminated a pregnancy after 13 weeks, which is the start of the second trimester.
Former, current and proposed abortion law
The U.S. Supreme Court overturned the national right to an abortion in 2022. When that happened, a trigger law adopted by the South Dakota Legislature in 2005 immediately banned abortion in the state, with one exception to “preserve the life of the pregnant female.”
Disputes over the meaning of that exception have caused consternation among some South Dakota physicians who worry they will be charged with a felony if they act too quickly to intervene on behalf of a pregnant patient’s life.
The state Department of Health released an informational video in September explaining when a medical provider could perform an abortion within the state’s exception. Some doctors said that the video did not address their concerns, and that the advice was not legally binding and they still fear repercussions.
A ballot question committee, Dakotans for Health, gathered petition signatures earlier this year to put Amendment G on the ballot. Turbak Berry leads a group affiliated with Dakotans for Health, the Freedom Amendment Coalition.
An opposing ballot question committee, the Life Defense Fund, for which Woods is a spokeswoman, has filed a lawsuit seeking to invalidate Amendment G. The suit, which is not scheduled to be resolved until after the election, claims Dakotans for Health violated laws that govern the circulation of petitions.
Amendment G would prohibit first-trimester regulations on “a pregnant woman’s abortion decision and its effectuation.” In the second trimester, it would allow regulations “reasonably related to the physical health of the pregnant woman.” In the third trimester, it would allow an abortion ban with a mandatory exception to “preserve the life or health of the pregnant woman.”
Proponents say the amendment is supported by voters, citing a Chiesman Center for Democracy and South Dakota News Watch poll showing that 53% of respondents support the amendment. They also point to 2006 and 2008, when South Dakota voters defeated abortion bans with about 55% against a ban each time.
South Dakota is one of 10 states with an abortion-rights measure on the ballot this fall. Voters in six other states have already adopted abortion-rights measures since the 2022 Supreme Court decision.
‘Back alley’ claims, safety and parental consent
Amendment G opponents highlight language in the measure that says, for example, “the state may not regulate a pregnant woman’s abortion decision and its effectuation” in the first trimester.
Woods said such language could prohibit the state from enforcing health and safety protections such as licensing requirements for physicians and parental consent for minors seeking abortions.
“This is going to put a lot of women’s health and livelihoods in jeopardy,” Woods said. “That’s not what South Dakotans want.”
That would “take us back to the dark ages,” Woods said during the September debate.
“You don’t have to be a doctor to perform an abortion,” Woods added. “It can be on the black market.”
That would legalize “back alley abortions,” Woods claimed.
Turbak Berry said general public health laws and administrative rules would still apply, including for safety, licensing and informed consent.
Abortion is generally considered a medical procedure. It is recognized as such in South Dakota law under the public health and safety title.
Under Roe v. Wade, which Amendment G backers say their measure emulates, and in the U.S. Supreme Court decision Connecticut v. Menillo (1975), Turbak Berry said, states may require that only a physician licensed by the state can prescribe an abortion. South Dakota law requires physicians to be licensed in the state to practice medicine.
States can require parental consent for a minor’s abortion based on the U.S. Supreme Court’s decision in Belotti v. Baird in 1979, Turbak Berry said. South Dakota law requires unemancipated minors to have parental consent before receiving any medical care, except in emergencies and for sexually transmitted diseases.
During the Roe era, South Dakota passed laws restricting abortion in the state, including a mandatory 72-hour waiting period in which a woman seeking an abortion had to receive counseling and material to discourage an abortion before the procedure could be completed. South Dakota law before the abortion ban was triggered in 2022 required a parent of a minor be notified 48 hours before an unemancipated minor or incompetent female received an abortion.
Ultimately, if Amendment G passes and there is a disagreement about what state regulations can be implemented, that would be settled in court. The attorney general wrote in his official ballot explanation that “judicial clarification of the amendment may be necessary.”