Stymied in South Dakota
PIERRE, S.D. — The demise of South Dakota House Bill 1191, which would have banned most of the state's abortions, has left many pro-life supporters scratching their heads wondering what went wrong.
“Just the day before, we were certain it was going to pass,” said Ben Eicher, a religion teacher at St. Thomas More High School in Rapid City. Students, faculty and administrators at the school signed petitions, made telephone calls and sent e-mails to state legislators in support of the bill.
“I was sitting in an office when a fellow religion teacher came in looking like she had seen a ghost,” Eicher said. “She said, ‘I can't believe this. It [the bill] didn't pass.’ It had originally passed the Senate by such a large margin that we were legitimately shocked.”
“We're deeply disappointed,” Eicher added. “The shoe dropped somewhere. The feeling is that we got sold out somehow and that we can't trust the system to do the right thing. People are walking around wondering what really happened.”
What really did happen?
State Rep. Matt McCaulley introduced the bill on Jan. 22, the 31st anniversary of the 1973 U.S. Supreme Court decision Roe v. Wade. Baptist by background, McCaulley approached the Ann Arbor, Mich.-based Thomas More Law Center, a Catholic law organization, for assistance in drafting the bill and worked to solicit support from his colleagues in both the House and Senate. At the time of the bill's introduction, it was cosponsored by 47 of his House colleagues and 18 state senators.
The bill would have made abortion a class 5 felony, punishable by a $5,000 fine, five years in prison or both.
After the bill's passage by a 54-14 vote in the House on Feb. 10, it went to the Senate State Affairs Committee. There, the bill was amended with language that would keep abortion legal but require doctors who perform abortions to provide more information.
“The bill had been gutted,” McCaulley said, “but Sen. Lee Schoenbeck was able to amend the bill, restoring it to a form substantially similar to what passed through the House. An opponent of the bill added a provision that would have allowed an abortion when the pregnant mother was facing a serious risk of the substantial and irreversible impairment of a major bodily function. That motion tied 17-17. The lieutenant governor, Dennis Daugaard, who was presiding, voted to put that amendment on the bill.”
That bill passed the Senate by an 18-16 vote and was sent onto Gov. M. Michael Rounds, who vetoed the bill, asking for technical changes to it. Rounds wanted to ensure the state's existing pro-life laws would remain on the books if the legislation were declared unconstitutional.
Sen. Jay Duenwald wrote a letter to Rounds urging him to veto the bill.
“Without an objective standard for health, [nothing will] prevent this exception from turning into a gigantic loophole,” Duenwald said.
“The governor could have signed the bill that was delivered to him,” McCaulley said. “It was in proper form. It would have become law had the governor signed it, but he sent it back with technical corrections, and that is when one of the senators switched their vote.”
On March 15 the House approved the governor's changes, but the Senate did not, voting against the bill 18-17.
A Movement Divided
The bill's death had offered a living example of the very real divisions that exist within the pro-life movement. Pro-life supporters say the bill's defeat has created divisions across the state. Both sides in the debate have been blaming one another for the bill's failure.
Those who supported the bill have argued that South Dakota Right to Life's lobbying efforts were tantamount to siding with Planned Parenthood.
“One of my staff overheard a Planned Parenthood lobbyist saying, ‘We can go home for the weekend. Right to Life is going to kill this bill for us,’” said Leslee Unruh, director of the Sioux Falls-based Alpha Health Services pregnancy-resource center and longtime member of South Dakota Right to Life. Unruh's husband was one of the original founders of South Dakota Right to Life.
“It's torn apart our whole pro-life community,” she said.
“Right to Life has from the very beginning opposed this bill,” McCaulley said. “I tried to accommodate the position of Right to Life, but in the end they didn't want to compromise, they wanted the bill dead.”
Opponents of the bill claimed it wouldn't reduce abortions. Led by Duenwald, they argued the health exception gutted the intent of the bill.
Duenwald described the bill as “well-intentioned but naïve.”
“The reason the bill lost is because of the merits of the bill,” said Duenwald, a board member with National Right to Life and South Dakota Right to Life. “The bill didn't do anything to prevent abortions. It allowed abortion at the discretion of the abortionists.”
Duenwald also questioned the potential cost to the state and the bill's timing.
“The timing was terribly wrong,” he said. “We're not going to get a pro-life person appointed to the court and approved within a year. If we could get rid of U.S. Sen. Tom Daschle and reelect Bush, then we would have a fighting chance. If we succeed there, then we can look forward to bringing legislation.”
Daschle, the U.S. Senate minority leader, represents South Dakota.
‘A Mortal Sin’
“As a Catholic, in good conscience I could not support the bill. It would be a mortal sin for me to support it because it helps the abortionists,” Duenwald said. “The bill did exactly the opposite of what it purported to do.”
Yet the bill had the support of the state's Catholic lobbying arm, the Catholic Advocate Network and both of the state's bishops. Sioux Falls Bishop Robert Carlson and Rapid City Bishop Blaise Cupich released a joint statement to the legislators in support of the bill.
That statement read: “We obviously want to see the outlaw of all abortions, with no exceptions except to save the life of the mother. But we are also for laws that limit the number of abortions in South Dakota. Each step closer to a total ban saves more lives and helps to protect the health and dignity of women. As for the legal issues surrounding this particular bill, it is outside our ability to predict the outcome.”
In addition, the Sioux Falls Diocese's Respect Life Office had worked directly with the primary sponsors of the bill through the entire process as the bill moved to the Senate floor.
“Had I not had the support of the diocese and the Thomas More Law Center, I would not have brought the bill forward,” McCaulley said. “I wanted a bill that people of all walks of faith could support.”
“This fight was not over abortion but over trying to destroy South Dakota Right to Life,” Duenwald said. “They brought a bill that we had to oppose and they knew that.”
Richard Thompson, executive director of the Thomas More Law Center, who worked with McCaulley in drafting the bill's language, disagreed.
“This bill had been vetted by a lot of people early on,” he said. “Notre Dame professors Charles Rice and Gerard Bradley both testified that it passed constitutional muster.”
“This was a comprehensive ban,” Thompson said. “We were one vote away from having a bill for the first time in 31 years that would have directly challenged Roe v. Wade. To have pro-life attorneys purposefully work to defeat this bill was a betrayal.”
Unruh wonders whether the politics of personality didn't play a role in the bill's ultimate demise.
“There were some who didn't want McCaulley to be the one bringing this up,” she said. “They wanted to be the ones bringing this forward.”
Rapid City teacher Eicher said the politics of personality aren't uncommon in a state as small as South Dakota.
“When you're in a small state, people are very protective of their territory,” he said. “There are those who will oppose anything that hasn't gone through them first.”
Whatever the reason, pro-life supporters see it as a loss.
As soon as the bill had passed in the House, Unruh said her pregnancy center began receiving telephone calls from young women who thought abortion had been made illegal.
“We were even able to save a baby,” Unruh said. “Eight hundred babies will die in my city next year. Imagine how many babies could have been saved if this had become law.”
Tim Drake writes from St. Cloud, Minnesota.
- April 4-10, 2004