SIOUX FALLS, S.D. — Two years after South Dakotans rejected a nearly total ban on abortion, voters on Nov. 4 will decide another sweeping but less-restrictive ballot measure that would probably send a legal challenge of Roe vs. Wade to the U.S. Supreme Court.
The initiative would outlaw abortions but includes exceptions for rape, incest and pregnancies that threaten the life or health of the woman. Some voters said they wanted those exceptions when they rejected the tougher 2006 measure 56 percent to 44 percent.
Opponents say the new measure would jeopardize the patient-doctor relationship because physicians could be criminally charged for exceeding its bounds. They also argue that its exceptions are too narrowly defined and that it would force some women to carry an unhealthy fetus.
Leslee Unruh, the executive director of VoteYesForLife and the measure’s main proponent, said it is legally sound.
Eleanor Smeal, president of the Feminist Majority Foundation, said the initiative could threaten legalized abortion in every state, especially if it goes before a 2011 or 2012 Supreme Court that would probably tilt to the right if Sen. John McCain becomes president.
McCain’s Democratic rival, Sen. Barack Obama, supports the right-to-abortion principles of Roe vs. Wade and would be less likely to appoint justices who would consider overturning it.
Colorado and California also have abortion-related measures on the ballot, but “this is one of the worst bans,” Smeal said of the South Dakota proposal. “This ban, which was defeated pretty solidly last time, is essentially the same ban this time but the language is more defective. We take it very seriously, and so we’re hoping that it will be defeated.”
Unruh said that the measure might provoke a legal challenge but that her focus is on preventing abortions in South Dakota.
“We’d be the first abortion-free state,” she said. South Dakota Campaign for Healthy Families, the main group urging the measure’s defeat, has focused on statements from several doctors and health care groups expressing concerns about the legal ramifications.
In September, the South Dakota State Medical Association came out against the measure “solely based on interference by the government in medical practice and restrictions on physician-patient communications.” President Dr. Cynthia Weaver said the group didn’t take a side on abortion, just the ballot issue.
“Anything that interferes with our ability to talk to our patients and take care of them and where they have to do criminal investigations makes it difficult to have a good patient-doctor relationship,” she said.
South Dakota doctors who support the measure vehemently disagree, Unruh said. The issue has the support of more than 40 state and national organizations, supporters say.
Some concerns outlined by opponents were echoed in an internal memo from lawyers for Sanford Health, a Sioux Falls-based health care system, to its executives. The memo was obtained by Jan Nicolay, co-chair of the South Dakota Campaign for Healthy Families.
If the measure becomes law, some procedures would no longer be allowed at the health system, such as termination of pregnancies in which the fetus is likely to die, the memo says. Also, vague language about the mother’s health would create the risk of criminal penalties, it states.
