Some South Dakota abortion rights groups do not support a potential ballot measure that aims to restore those rights.
The groups say they have concerns about the measure’s language and the way it was drafted.
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“We are not telling people to donate, or volunteer,” said Samantha Chapman, advocacy manager for the American Civil Liberties Union of South Dakota. “We are staying out of it. We’re not telling people to vote no or yes.”
Planned Parenthood North Central States expressed a similar position in a written statement. The organization was formerly the only elective abortion provider in South Dakota.
“Constitutional amendments are serious and expensive undertakings that must be initiated after due diligence and input from those who would be impacted the most,” wrote Tim Stanley, Planned Parenthood North Central States vice president of public affairs.
“As the sole abortion provider in South Dakota for more than 30 years,” he continued, “Planned Parenthood is acutely aware of the impact policy language can have on patients’ lives. We stand with our partners at ACLU of South Dakota and do not support the amendment as drafted because we don’t believe it will adequately reinstate the right to abortion in South Dakota.”
The U.S. Supreme Court overturned the constitutional right to an abortion in a June 2022 decision. When that happened, a trigger law that the South Dakota Legislature had adopted in 2005 immediately banned abortions in the state except when necessary to save the life of the mother.
A ballot-question committee called Dakotans for Health submitted the text of a proposed measure to restore South Dakota abortion rights in June 2022, after the Supreme Court’s impending decision had been leaked but before the decision was officially announced. The committee is now collecting petition signatures in hopes of placing the measure on the Nov. 5, 2024, general election ballot.
Rick Weiland, chairman of Dakotans for Health, defended the measure and its drafting process.
“We’re getting attacked from the left and the right,” he said. “We must be doing something correct.”
The ballot measure would amend the state constitution to legalize all abortions during the first trimester of a pregnancy. It would allow regulations on abortion during the second trimester, but only in “ways that are reasonably related to the physical health of the pregnant woman.” In the third trimester, it would allow regulations up to a ban on abortions, with exceptions for the life or health of the pregnant woman.
Advocates critical of Dakotans for Health
Kim Floren is the co-founder and director of the South Dakota Justice Empowerment Network, which helps South Dakotans seeking abortions. She said the drafting of the measure was rushed.
“Advocates wanted to pause and do some research, complete some polling first, figure out the best language for a bill in this state,” Floren said. “Dakotans for Health didn’t want to wait for any of that.”
Kristin Hayward formerly worked for Planned Parenthood and is an abortion rights advocate.
“There is a reason why two giant pro-choice organizations are not out there supporting this bill,” Hayward said, referring to the ACLU and Planned Parenthood. If they supported the measure, Hayward added, “There would be billboards, commercials.”
Hayward blames Dakotans for Health.
“We explained how there would need to be a lot of eyes on any ballot measure proposal, and they refused,” Hayward said. “We have all seen how state lawmakers mess with what the voters pass. We need to be careful.”
Hayward was referring to past examples of South Dakota legislators repealing or amending ballot measures passed by voters. In this case, the constitutional amendment would expressly allow legislators to enact limitations on abortion in the second trimester, and up to a ban in the third trimester with exceptions for the life and health of the mother.
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Floren said she will vote for the abortion measure if it makes the ballot, but won’t campaign for it. Hayward did not answer similar questions in a follow-up message seeking clarification of her plans.
Dakotans for Health responds
Weiland, chairman of Dakotans for Health, said waiting for polling to help inform the drafting of a ballot measure was unnecessary, because South Dakota voters rejected abortion bans in 2006 and 2008.
“I will tell you, the fact that they wouldn’t commit to doing anything here forced us to move ahead,” Weiland said of the ACLU and Planned Parenthood. “We’ve got 450,000 women out here that are living under a trigger law right now, that can’t wait until national organizations decide if it’s worth it or not. Where does that leave women in South Dakota?”
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Weiland pointed to a 2022 poll of 500 registered South Dakota voters showing 65% of them supported having a statewide referendum to determine the state’s reproductive rights laws, and 76% supported allowing legal abortion in cases of rape and incest, which are exceptions not currently allowed under South Dakota’s law.
Cathy Piersol, a retired Sioux Falls lawyer who’s involved with Dakotans for Health, said abortion-rights advocates and abortion-rights groups were offered opportunities to get involved and provide input on the ballot measure language.
“It’s simply not true that those groups did not have input,” Piersol said.
She said the idea of pursuing a ballot measure with Dakotans for Health came from former South Dakota legislator Jan Nicolay, who helped lead efforts to defeat abortion bans in 2006 and 2008. The 2006 ballot measure would have banned abortions except to save the life of the mother, and the 2008 ballot measure would have banned abortions with exceptions for the life of the mother, rape and incest.
Nicolay felt compelled to take action when the 2022 U.S. Supreme Court decision was leaked.
“We sat around and waited for someone to surface, to take the lead and go forward,” she said.
Early meetings on the ballot measure, according to Nicolay, “included everybody.”
“Planned Parenthood was there, ACLU was there,” she said. “And we were not there to take over. We were just trying to create some structure for leadership.”
Ultimately, Nicolay said, “None of them was willing to take on the ballot measure.”
“That includes the ACLU and Planned Parenthood,” she said. “Rick Weiland stood up.”
Weiland, a Democratic former congressional staffer and candidate, has been involved in numerous ballot question campaigns.
Piersol said “the obvious solution seemed to be to put Roe v. Wade into the state constitution,” referring to the 1973 Supreme Court case that established the right to an abortion. “And the language needed to get submitted before the election of Secretary of State Monae Johnson, because we didn’t know what she would try to do with it.”
Johnson, a Republican, was elected in November 2022 after touting an endorsement from the anti-abortion South Dakota Right to Life organization, and after repeatedly declining to affirm the legitimacy of the 2020 presidential election.
ACLU’s Chapman alleges lack of consultation
Chapman, of the ACLU, said the ballot measure was initiated by “women who are not of reproductive age” and said “Dakotans for Health is ultimately run by three white men. None of these people are directly affected by this.”
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Nicolay disagreed with that assessment.
“No three men led this,” Nicolay said. “I’m sorry, but that’s very offensive to me and misleading.”
Nicolay, who is 81, also said passing the measure “has nothing to do with whether or not I can get pregnant. It’s about the right to choose.”
The three men Chapman referred to are Weiland, his son Adam, and attorney Jim Leach.
Chapman was formerly married to one of Weiland’s other children. She said that has not influenced her views, and the ACLU had analyzed and formed its stance on the potential ballot measure before she was hired in December 2022.
“Were the pro-choice organizations with grassroots knowledge of the current landscape of this state consulted?” Chapman said. “No, they were not. The ACLU believes that in order to do this work effectively and meaningfully, the people most impacted should be directly involved in the decision-making process about the language and direction of the campaign.”
Chapman said Michigan is an example of how the process should have worked. There, the ACLU of Michigan partnered with Planned Parenthood and Michigan Voices to form a coalition. That coalition, after getting feedback from relevant stakeholders, initiated a successful campaign to amend that state’s constitution, protecting reproductive rights.
Ballot measure’s future
Floren and Hayward said they don’t believe the measure goes far enough to protect abortion rights. And they worry that if it passes, it could become the final say on the matter. They also have problems with some of the measure’s language; for example, “the measure uses the terminology ‘women,’ which could give the Legislature the ability to exclude minors,” Floren said.
Weiland said any abortion rights measure will be attacked by the Republican-dominated Legislature and anti-abortion leaders. The Republican state attorney general’s official explanation of the measure already includes the statement, “judicial clarification of the amendment may be necessary.”
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“Anything could be litigated,” Weiland said. “That’s the way it works. No one can stop anybody from filing a lawsuit.”
Weiland said Dakotans for Health has already reached 50,000 signatures, well ahead of the 35,017 needed from registered voters to put the measure on the ballot. The committee is seeking a cushion of even more signatures.
“We’re trying to restore the rights that women have had for the last 50 years,” Weiland said. “And that’s why we have used the actual language of Roe v. Wade for the amendment. You know, whatever rights women had from Roe back in 1973, they will get when this thing passes and becomes part of our constitution.”
Meanwhile, the group hoping to stop the measure has a unified front, according to Dale Bartscher, the executive director of South Dakota Right to Life. He said “it does not surprise us at all” that the abortion rights groups are divided.
“The pro-life coalition is solid, and totally together on this,” he said, pointing to groups including Right to Life, Family Voice, South Dakota Catholic Conference, Concerned Women for America and others.
“A real unified front,” he said.
Nicolay said if abortion rights advocates don’t unify, “That’s what’s going to kill us at the ballot box. If you don’t have a unified voice, you’re going to fail.”
EDITOR’S NOTE: This story has been updated with a clarification regarding Kristin Hayward’s professional affiliations and her request to be cited as speaking for herself.
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