Vote no and they're doctors. Vote yes and they're felons. That's what it came down to last week as South Dakota state senators weighed in on a bill that would have made most abortions in the state Class 5 felonies-and those who perform them criminals.
House Bill 1191 would have outlawed medical and surgical abortion except when necessary to save the mother's life, or prevent "substantial and irreversible impairment to a major bodily function." Intended as a direct assault on Roe vs. Wade, the bill was built around federalist and constitutional arguments: First, that since the question of when life begins remains unsettled at the federal level, that determination falls to the states. Second, that since South Dakota lawmakers had determined that life begins at fertilization, an unborn child at any gestational age is a person entitled to equal protection under the law.
On Feb. 26, lawmakers gave HB 1191 a thumbs-up. The vote in the Senate was close㬎 to 17 in favor-despite the Republican Party's two-thirds majority in that chamber. The reason: Major pro-life groups, including the National Right to Life Committee (NRLC) and South Dakota Right to Life (SDRTL), withheld their endorsement of the bill, thereby splitting the pro-life vote.
Why? The certainty of expensive-and, some argued, unwinnable-litigation. NRLC said the bid for a sweeping abortion ban was premature. SDRTL predicted the measure would not survive legal challenges.
But the legal challenge, said Rep. Matt McCaulley, was entirely the point. Mr. McCaulley, the bill's prime sponsor, said the state "has a responsibility to fight" for the right to life. Epic legal victories, he said, aren't won by "waiting for 'the right time' ... but by aggressive action and appeals to the Supreme Court."
A courageous argument. But not enough to convince Republican Gov. Mike Rounds, who on March 9 vetoed the bill, but didn't kill it. Issuing what is known as a "style and form" veto, Gov. Rounds added minor technical changes before sending the measure back to lawmakers for a new vote.
This time, the bill did not survive. On March 15, Sen. Paul Symens, a Democrat who on Feb. 26 voted in favor of the bill, nixed it the second time around. The measure failed by a single vote, with 10 Republicans voting no. Mr. McCaulley told WORLD he was surprised and disappointed: "But what haunts me is that someone stood up on the Senate floor [on March 15] and said, 'We can kill this now, and try again next year.' Unfortunately for 800 unborn South Dakotans, there won't be a next year."