South Dakota, South Dakota, ABORT MISSION!ABORT MISSION!By Jocelyn Karlan and Rebecca RosenBy Jocelyn Karlan and Rebecca Rosen

Those South Dakotans…Those South Dakotans… Almost 89% are whiteAlmost 89% are white About 86% are About 86% are

Christians Christians Generally Republican Generally Republican

has not supported has not supported Democratic presidential Democratic presidential candidate since 1964candidate since 1964

Economy based on Economy based on agricultureagriculture

The only thing worth seeing in SD

What’s Your Issue!?What’s Your Issue!? The most significant The most significant

modern political issues modern political issues of South Dakota are of South Dakota are the legality of the state the legality of the state lottery, the low lottery, the low rankings in education rankings in education finance, and finance, and abortionabortion

Surprisingly 48% of Surprisingly 48% of voters supported voters supported medicinal marijuana medicinal marijuana and gay marriage in and gay marriage in 20062006 Look at all those R’s!

The South Dakota Abortion Bill The South Dakota Abortion Bill (2006)(2006)

States that it is a States that it is a felony for doctors to felony for doctors to perform any abortion perform any abortion except to save the except to save the life of a pregnant life of a pregnant womanwoman

No exception though No exception though for rape or incest for rape or incest

Planed Parenthood v. Planed Parenthood v. Casey (1992)Casey (1992)

5 provisions of abortion regulation being 5 provisions of abortion regulation being challengedchallenged 1. informed consent (doctors must explain abortion 1. informed consent (doctors must explain abortion

to patient)to patient) 2. spousal notification2. spousal notification 3. parental consent (for minors)3. parental consent (for minors) 4. 24 hour waiting period (between consulting doctor 4. 24 hour waiting period (between consulting doctor

and actual abortion)and actual abortion) 5. reporting requirements on abortion facilities5. reporting requirements on abortion facilities

What Went DownWhat Went Down In the case, the Supreme Court decided In the case, the Supreme Court decided

5-4 to uphold 5-4 to uphold Roe v. WadeRoe v. Wade and oppose and oppose the new Pennsylvania state law that the new Pennsylvania state law that restricted abortionsrestricted abortions

Who’s Involved? Who’s Involved? 11stst direct challenge of direct challenge of Roe Roe

v. Wadev. Wade was expected to was expected to be a pro-life victory be a pro-life victory

Only 2 obvious supporting Only 2 obvious supporting judges at start of casejudges at start of case

Justices Souter and Justices Souter and Kennedy changed sides to Kennedy changed sides to support Roesupport Roe

Sandra Day O’Connor Sandra Day O’Connor changed to become strong changed to become strong supporter of Roesupporter of Roe

I’m Sandra Day O’Connor and I promote the principle of undue burden! Wanna

know what that is? Proceed to the next slide!

What is Undue Burden? What is Undue Burden? The concept of undue burden is this: a state The concept of undue burden is this: a state

cannot regulate abortion to such an extent that cannot regulate abortion to such an extent that it completely interferes with a woman’s right to it completely interferes with a woman’s right to an abortionan abortion

PROBLEM! This lowered the standard for pro-PROBLEM! This lowered the standard for pro-choice support in that regulation and choice support in that regulation and interference was legalized, as long as it didn’t interference was legalized, as long as it didn’t create and “undue burden”create and “undue burden”

South Dakota Law South Dakota Law WASWAS imposing an undue imposing an undue burden by banning abortions all togetherburden by banning abortions all together

A Victory for Abortion Rights?A Victory for Abortion Rights? Yes, the Yes, the Casey Casey case did support case did support Roe v. Roe v.

WadeWade as it permitted certain abortions as it permitted certain abortions and supported the 14and supported the 14thth Amendment’s due Amendment’s due process clause process clause

No, the undue burden principle was No, the undue burden principle was ambiguousambiguous 1. allowed for regulation while creating 1. allowed for regulation while creating

opportunity to find loopholes in legality opportunity to find loopholes in legality 2. allowed regulation: shortened 2. allowed regulation: shortened

trimester period, upheld waiting trimester period, upheld waiting period, upheld informed consent– period, upheld informed consent– SOME WOMEN might see this as SOME WOMEN might see this as burdensome burdensome

Created “procedural hurdles” in Created “procedural hurdles” in seeking an abortionseeking an abortion

She DEFINITELY does not want states to impose an undue burden

Webster v. Reproductive Health Webster v. Reproductive Health Services (1989)Services (1989)

Missouri Law created mandate restricting the Missouri Law created mandate restricting the use of state funds, facilities, and employees use of state funds, facilities, and employees in performing or counseling abortionsin performing or counseling abortions

Supreme Court voted that the law Supreme Court voted that the law WASWAS constitutional, with strong support from constitutional, with strong support from O’Connor who explained that the law does O’Connor who explained that the law does not cause an undue burden not cause an undue burden

There was no undue burden caused by limiting state funding because any woman could still

receive an abortion through private funding. Get it?

South Dakota vs. South Dakota vs. MissouriMissouri

Both the Missouri Law and South Both the Missouri Law and South Dakota Law were attacks on Dakota Law were attacks on Roe v Roe v WadeWade

Both disallow any situational Both disallow any situational exceptionsexceptions Only difference is that Missouri Law is Only difference is that Missouri Law is

limited to state funding regulation, limited to state funding regulation, whereas South Dakota is universal whereas South Dakota is universal regulationregulation

For Example: according the MO law, if a poor woman could not privately afford an abortion, she could not turn to the state for assistance

She cannot afford an

abortion. Will the state help

her? NO!

Stenberg vs. Cahart Stenberg vs. Cahart (2000)(2000) Nebraska Law made it illegal to perform a Nebraska Law made it illegal to perform a

partial-birth abortion without any exception for partial-birth abortion without any exception for health of the motherhealth of the mother

Supreme Court Struck Down the LawSupreme Court Struck Down the Law Win for Win for Roe v WadeRoe v Wade unlike unlike Planned v. CaseyPlanned v. Casey or or

Webster v ReproductiveWebster v Reproductive

By completely illegalizing partial-birth abortions, the Nebraska Law made doctors constantly afraid of being sued by the state for performing an abortion. Causing

such fear is an UNDUE BURDEN!

This is similar to South Dakota Law in that both produce an undue burden that is eventually struck down

Nancy Keenan of NARAL Pro-

Choice America

“When you seen them [i.e. The states] have a ban that does not include

exceptions for rape or incest or health of the mother, you understand that elections

do matter.”

This creates an issue of Federalism vs. morality

What are you going to do, What are you going to do, Senator?Senator?

I’m gonna stick by States’ Rights!

1. States are more responsible for my personal issues because they have a smaller constituency

2. The local electorate can help support the ideals and opinions felt in a specific county or region, whereas demographics on a national level are just too diverse

3. I might be pro-choice, but the state comes first

Morals or Bust!

1. I am willing to rely on the federal government because federalism protects states rights while also taking into consideration the greater benefit of the nation

2. I am pro-choice, and that overrides my loyalty to my state

What happens if you are pro-choice but also a states’ rightist? Do you support federal intervention?

THE VERDICT: We feel that personal passions or morals will

outweigh loyalty to the state. People are often influenced by tradition and religion, and will fight even harder to support

morality

What eventually happened in What eventually happened in South Dakota?South Dakota?

The original bill passed both the The original bill passed both the House and Senate of the SD House and Senate of the SD LegislatureLegislature

Governor Mike Rounds revised the Governor Mike Rounds revised the bill and sent it back to the legislature bill and sent it back to the legislature for approvalfor approval

The House passed the revised billThe House passed the revised bill The Senate State Affairs Committee The Senate State Affairs Committee

voted down the measure 8-1. Even voted down the measure 8-1. Even supporters from the previous year supporters from the previous year when the bill originally passed had when the bill originally passed had changed sides and did not want to changed sides and did not want to argue the committee decision argue the committee decision

In the end, Roe held strong!

In the end, there was no conflict between morals

and state loyalty because the state legislature voted

down the bill before it even reached the

Supreme Court or any Federal level

When consulting the 2005 abortion popularity statistics, we found that

Vermont was the most strongly pro-choice state, and Utah was the most strongly pro-

life.

What they’re thinkin’ in What they’re thinkin’ in the Beehive State the Beehive State

(Utah)(Utah)

In 1991 Utah tried to ban abortion, but In 1991 Utah tried to ban abortion, but the federal government struck it down– the federal government struck it down– now Utah waits for the fall of now Utah waits for the fall of Roe v. Roe v. WadeWade to enact their ban to enact their ban

Today, Utah abortion is strictly regulated: Today, Utah abortion is strictly regulated: parental notification and consent, parental notification and consent, sonogram requirementsonogram requirement

Strongly impacted by Mormon idealsStrongly impacted by Mormon ideals

What they’re thinkin’ What they’re thinkin’ in the Green Mountain in the Green Mountain

State (Vermont) State (Vermont)

The only state in the union who hasn’t tried The only state in the union who hasn’t tried to pass an abortion law since 1973to pass an abortion law since 1973

Does not require any parental consent or Does not require any parental consent or notification for minors seeking abortionsnotification for minors seeking abortions

Doesn’t allow a doctor to refuse to perform Doesn’t allow a doctor to refuse to perform an abortion, even if acting in a religious an abortion, even if acting in a religious medical facilitymedical facility

Mmm…marble Mmm…marble cake federalismcake federalism

The Federal Stance on abortion regulation is an example of cooperative or marble cake federalism: The federal government upholds Roe v. Wade and is thus involved in the state sphere of government

However, the ambiguity of modern abortion regulation gives some freedom and sovereignty to the states

In the case of the South Dakota ban, many South Dakotans opposed abortion, but the overall feeling and influence of the national government impacted the eventual decision to override the ban