South Dakota

South Dakota

The pre-Roe statutes prohibited performance of an abortion on a pregnant woman unless the procedure was “necessary to preserve her life,”^¹ and made a woman’s participation in her own abortion a criminal offense (subject to the same exception).^² Pursuant to Roe, the former statute was declared unconstitutional by the South Dakota Supreme Court in State v. Munson,^³ and both statutes were later repealed.^⁴ The pre-Roe statutes would not be revived by a decision overruling Roe v. Wade. Abortions could be performed for any reason through the twenty-fourth week of pregnancy, and for virtually any reason thereafter.^⁵ In 2005, South Dakota enacted a “trigger” statute which would prohibit abortion except “to preserve the life of the pregnant female,” which would take effect “on the date that the states are recognized by the United States Supreme Court to have the authority to prohibit abortion at all stages of pregnancy."^⁶ Recently, South Dakota enacted a statute to prohibit abortions except to prevent the death of the pregnant woman.^⁷ The statute was to take effect July 1, 2006, but, pursuant to a citizen initiative, was referred to the voters in a law referendum. The statute will not take effect because it was not approved by a majority of the voters in a referendum in the general election of November 7, 2006.

^¹ S.D. Codified Laws § 22-17-1 (1967).

^² Id. § 22-17-2. No prosecutions were reported under this statute.

^³ 206 N.W.2d 434 (S.D. 1973). In its original decision, the South Dakota Supreme Court upheld the constitutionality of the statute. See State v. Munson, 201 N.W.2d 123 (S.D. 1972), vacated and remanded, 410 U.S. 950 (1973).

^⁴ 1973 S.D. Laws 206, 209, ch. 146, §§ 15, 16; 1976 S.D. Laws 227, 257, ch. 158, §§ 17-1, 17-2; 1977 S.D. Laws 258, 282, ch. 189, § 126.

^⁵ Because of its undefined health exception, South Dakota’ statute prohibiting abortions after the twenty-fourth week of pregnancy, see S.D. Codified Laws § 34-23A-5 (Michie 1994), would not effectively prohibit abortions at that stage of pregnancy. In interpreting the undefined health exception in the pre-Roe District of Columbia abortion statute, the Supreme Court held that “the general usage and modern understanding of the word ‘health’ . . . includes psychological as well as physical well-being.” United States v. Vuitch, 402 U.S. 62, 72 (1971). See also Doe v. Bolton, 410 U.S. 179, 192 (1973) (in determining whether an abortion is medically necessary, “all factors– physical, emotional, psychological, familial, and the woman’s age–relevant to the well-being of the patient” may be considered). There would be few, if any, abortions that could not be justified on psychological or emotional grounds.

^⁶ House Bill 1249 §§ 6, 7, as amended by House Bill 1266, § 1.

^⁷ See H.B. 1215 (2006).