South Dakota lawmakers approved a ban on nearly all abortions Friday, setting up a legal challenge to Roe vs. Wade at a time when some activists see the U.S. Supreme Court as more willing than ever to overturn the 33-year-old decision.
Republican Gov. Mike Rounds said he was inclined to sign the bill, which would make it a crime for doctors to perform an abortion unless it was necessary to save the woman's life. The measure would make no exception in cases of rape or incest.
Many opponents and supporters of abortion rights say the U.S. Supreme Court is more likely to overturn its 1973 Roe vs. Wade decision legalizing abortion now that John Roberts and Samuel Alito are on the bench. Lawmakers said growing support among South Dakotans for abortion restrictions added momentum to the bill.
"I think the stars are aligned," said House Speaker Matthew Michels, a Republican. "Simply put, now is the time."
Planned Parenthood, which operates the only abortion clinic in South Dakota, has said it will sue over the measure. About 800 abortions a year are performed in South Dakota.
Legal experts said a judge would be likely to suspend the abortion ban during the legal challenge, which means it's possible it might never take effect unless the state gets the case all the way to the U.S. Supreme Court and wins.
Some opponents of the bill said abortion should be allowed in cases of rape or incest, or where the woman's health is threatened. If a rape victim becomes pregnant and bears a child, it's possible the rapist could have the same parental rights as the mother, said Krista Heeren-Graber, executive director of the South Dakota Network Against Family Violence and Sexual Assault.
"The idea the rapist could be in the child's life . . . makes the woman very, very fearful. Sometimes they need to have choice," Heeren-Graber said.
Under the measure, doctors could get five years in prison for performing an illegal abortion. The House passed the bill 50-18 on Friday, and the Senate approved it 23-12 earlier this week. If signed, it would become law July 1.
Money for the anticipated legal fight is already pouring in. Lawmakers were told during the debate that an anonymous donor has pledged $1-million to defend the ban, and the Legislature is setting up a special account to accept donations.
"We've had people stopping in our office trying to drop off checks to promote the defense of this legislation already," Rounds said.
Leslee Unruh, president of the Alpha Center, a Sioux Falls pregnancy counseling agency that tries to steer women away from abortion, said most of the abortions performed in South Dakota do not stem from rape or even failed contraception, but are simply "conveniences."
Unruh said most South Dakota women want the state to ban abortion, and many who have had abortions "wish someone would have stopped them."
The governor said he believes it would be better to eliminate abortion in steps rather than all at once. Rounds indicated he does not share the view that Alito and Roberts will usher in sudden, dramatic changes in how the court views abortion. He said it could be a drawn-out legal battle, and noted that it is not even assured that the high court will hear the case.
The bill "may satisfy a lot of individuals out there who would like to see if there is one slim chance the court may entertain three years from now a direct assault on Roe vs. Wade," Rounds said.
He added, however: "I've indicated I'm pro-life and I do believe abortion is wrong and that we should do everything we can to save lives. If this bill accomplishes that, then I am inclined to sign the bill into law."
Rounds said his staff will review the bill for technical defects. He noted that he vetoed a similar measure two years ago because it would have wiped out all existing restrictions on abortion while the bill was challenged in court.
Some advocates said an abortion ban would hurt poor women the most by forcing them to travel long distances to other states where the procedure is legal.
"It's a sad state of affairs that we have only one choice right now" in South Dakota, said Charon Asetoyer of the Native American Women's Health Care Education Resource Center. "But if you have to go out of state, the cost of making that trip will be prohibitive."
Kate Looby, Planned Parenthood director in Sioux Falls, said women who cannot afford to travel to a clinic might be forced to turn to unsafe methods of abortion.
"We've seen it in the past in this country, we've seen it all over the world and there's no reason to believe it would not happen in South Dakota," Looby said.
The last time a state Legislature directly challenged Roe vs. Wade was 1992, when the Supreme Court affirmed the standing of Roe in the case of Planned Parenthood vs. Casey, said Eve Gartner, a staff lawyer for Planned Parenthood.
Six years ago, in a 5-to-4 decision, the high court overturned a Nebraska law banning late-term abortions because the law included no exception for cases in which a woman's health would be threatened.
In that case, Stenberg vs. Carhart, former Justice Sandra Day O'Conner voted with the majority, along with liberal justices Ruth Bader Ginsburg, Stephen Breyer, John Paul Stevens and David Souter. The dissenters in that case were conservative justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and former Chief Justice William Rehnquest.
Rehnquist was replaced after his death by Chief Justice John Roberts, and Justice Samuel Alito has replaced O'Conner after her retirement. Both have declined to say how they might vote in a challenge to Roe vs. Wade.
Information from the Associated Press and New York Times was used in this report.