PIERRE, S.D. — On the 31st anniversary of Roe v. Wade, South Dakota state Rep. Matt McCaulley, R-Sioux Falls, introduced a bill that could ultimately lead to a reversal of the U.S. Supreme Court's decision.

South Dakota House Bill 1191 would make abortion a class 5 felony, punishable by a $5,000 fine, five years in prison or both. 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.

First elected in November 2000, McCaulley is serving his second two-year term. A Baptist, he said the idea for the ban first came to him more than a year ago.

“It came from the frustration that it is 31 years after Roe v. Wade and here we are still talking about the same issues,” McCaulley said. “That decision was made by nine people 1,500 miles from South Dakota, not by elected officials in the state who are accountable to the public for their decisions and responsible for the moral direction of our society. Under the 10th Amendment, this is our decision. States get to decide if they want to protect unborn human life.”

McCaulley's move reflects the fact that the states have been a key battleground in the fight to protect unborn children's lives. While it took eight years to pass a federal partial-birth abortion ban, many states have enacted their own.

Michael New, a post-doctoral fellow at the Harvard-MIT Data Center, found that state-level pro-life legislation had played an important role in the overall decline in abortions — and popular support for abortion — during the 1990s.

Americans United for Life has also recognized this trend. The pro-life law firm recently issued its first review of state policies and ranked states according to the efforts made to protect women and children. South Dakota was ranked ninth.

In writing the bill, McCaulley sought direction from leading pro-life organizations and medical and legal experts. A colleague encouraged him to contact the Ann Arbor, Mich.-based Thomas More Law Center.

“They saw it as a unique opportunity to get involved in confronting the decision,” McCaulley said. “They've been critical in helping prepare the language.”

“There were some, even in the pro-life movement, who said this isn't the right time because of the makeup of the Supreme Court,” said Richard Thompson, president and chief counsel for the Thomas More Law Center. “When is the right time? How many more millions of babies have to die before it's the right time? If the legislation is passed it would be at least two years before it would even go to the Supreme Court.”

In order to build support for the bill, McCaulley visited his legislative colleagues individually. He found them overwhelmingly supportive. Forty-seven of his House colleagues and 18 state senators agreed to co-sponsor the bill.

“My colleagues liked the concept of a full frontal attack on Roe v. Wade,” McCaulley said. “They support the idea that abortion is a moral issue to be decided by the state's elected officials.”

Against the ‘Mainstream’?

Not everyone, however, is pleased with the bill.

“Planned Parenthood opposes legislation that would ban abortion in South Dakota; it stands in stark contrast to the values of mainstream South Dakota because it provides no exception for victims of sexual assault and incest,” said Kate Looby, South Dakota state director for Planned Parenthood of Minnesota/South Dakota.

Planned Parenthood operates the state's only abortion business. In 2002, the business performed 815 abortions.

“That any business is making money by taking lives is appalling to me,” McCaulley said. “That's the only business that I want to put out of business. I see it as economic development.”

Looby also sees the legislation as an “irresponsible use of taxpayer dollars.”

“The authors and co-sponsors of the abortion-ban legislation know if their bill is passed and signed into law, it will be immediately challenged in court, and it will almost certainly lose,” she said. “It is in direct conflict with Roe v. Wade, and the South Dakota taxpayers would be forced to foot the legal bills, which could run into the hundreds of thousands, if not millions, of dollars.”

Thompson acknowledged the likely court battle that would ensue if the legislation were passed.

“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 Dred Scott decision that upheld slavery by regarding a segment of our population as nonpersons. 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.”

McCaulley explained that the bill is meant to address the limitations of Roe v. Wade.

“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,” McCaulley said. “I'm asking the Legislature to answer that question.”

“Our findings question some of the holdings in Roe v. Wade,” McCaulley added. “Ultimately, it should be overturned. If our law provides the basis for that, then so be it.”

The bill is not without precedent. South Dakota law already protects unborn children whose lives are terminated without the consent of the mother.

“Fetal homicide is a class B felony,” McCaulley explained. “This bill is extending that protection.”

A committee hearing on the bill took place Feb. 5. McCaulley expected a House vote on the bill Feb. 9 or 10. After that it would be sent to the Senate. Gov. Mike Rounds, a Catholic who opposes abortion, would not say if he would sign the measure, adding that he has not yet reviewed the legislation.

“The morality of the 1973 court has been imposed on the rest of us,” McCaulley said. “In our lifetime we will see the end of abortion. It's just a matter of us stepping up to the plate and doing what needs to be done.”

Tim Drake writes from St. Cloud, Minnesota.