Federal judge declines to intervene ‘at this time’ in fight over abortion ballot measure

People sign a petition to put a measure on the ballot in 2024 that would reinstate abortion rights in South Dakota. (Courtesy: Dakotans for Health)

Seth Tupper/South Dakota Searchlight

A federal judge is declining, for now, to stop a lawsuit in state court against South Dakota’s abortion-rights ballot measure.

Judge Karen Schreier signed her order Friday. She said a state court should rule on a key issue in the lawsuit before she considers intervening.

But she added, “If the state court ruling contradicts a federal court order, this court will consider the issue at that time.”

The anti-abortion Life Defense Fund filed its lawsuit in state court last month. The group wants to disqualify the abortion-rights measure from the Nov. 5 election.

Dakotans for Health gathered the thousands of petition signatures necessary to place the measure on the ballot. The group is defending the measure in state court, but also asked a federal judge to intervene and stop the litigation from proceeding.

One of the Life Defense Fund’s allegations is that Dakotans for Health failed to abide by the requirements of a 2018 state law. The Republican-dominated Legislature adopted the law to prevent out-of-state residents from circulating ballot petitions in South Dakota. Among other things, the law required petition circulators to file a sworn statement with various pieces of information proving their residency.

The Legislature replaced that law with new restrictions in 2019 and 2020. Those laws sparked federal lawsuits from plaintiffs who successfully argued that the restrictions infringed on their First Amendment rights to political speech.

The Life Defense Fund is now arguing that while the 2019 and 2020 laws were invalidated, the 2018 law was not invalidated and is still in force. The group is arguing that because Dakotans for Health’s petition circulators did not submit the sworn statements required by the 2018 law, the abortions rights measure should not be placed on the ballot.

Dakotans for Health is arguing that the lawsuits against the 2019 and 2020 laws invalidated the previous restrictions on petition circulators, and that the Life Defense Fund is trying to “flout” the federal court decisions.

Judge Schreier wrote in her order that she’s not issuing an injunction against the state-court lawsuit “at this time,” and that she’ll wait to see how the state court rules on the enforceability of the 2018 law before she decides whether to intervene. A motions hearing in the state-court lawsuit is scheduled for next week.

Abortions are currently banned in South Dakota, except to “preserve the life of the pregnant female.” The ballot measure would legalize abortions in the first trimester of pregnancy but allow the state to impose limited regulations in the second trimester and a ban in the third trimester, with exceptions for the life and health of the mother.