pre-Roe statutes prohibited performance of an abortion
on a pregnant woman unless the procedure was “necessary to
preserve her life,” and
made a woman’s participation in her own abortion a criminal
offense (subject to the same exception). Pursuant
to Roe, the former statute was declared unconstitutional
by the South Dakota Supreme Court in State v. Munson, and both
statutes were later repealed. 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. South Dakota
recently enacted a "trigger" statute that would prohibit
abortion, except "to preserve the life of the pregnant
female," which takes 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."
Laws § 22-17-1 (1967).
Id. § 22-17-2. No
prosecutions were reported under this statute.
434 (S.D. 1973). In its original decision, the South Dakota
Supreme Court had 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).
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.
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.
1249 §§ 6, 7, as amended by House Bill 1266, § 1.