Why Won't South Dakota Ban Abortion?

This column was written by Denise Ross.
South Dakota state legislator Larry Rhoden is as loyal a pro-life crusader as you are likely to find in the Rushmore state. Rhoden worked enthusiastically in 2004 to pass a state bill that would ban nearly all abortions. When that failed, he continued to push the issue--helping to form an abortion task force that would give legitimacy to the ban effort, and helped lead the efforts on another abortion ban bill that passed the legislature but failed when referred to a statewide vote as a ballot initiative in 2006. He even lent his support to the most recent incarnation--a ban including exceptions for rape and incest--that failed as a ballot initiative again this past Election Day.

But after two defeats at the ballot box, the conservative Republican is ready to throw in the towel. "I would question the wisdom of anybody that wanted to bring it forward again," says Rhoden, who makes his living as a rancher in the sparsely populated western corner of the state. His personal view on abortion hasn't changed, but as a policy-maker, Rhoden makes it plain that he wants no part of any more abortion bans. How did South Dakota--a state frequently described as "the most pro-life in the country"--become such hostile terrain for anti-abortion efforts?

In 2004, South Dakota seemed the ideal state from which anti-abortion activists could launch a head-on challenge to Roe v. Wade. Politically, it seemed unobjectionable. The South Dakota Legislature had already passed a steady stream of laws since Roe to make abortions increasingly difficult to obtain: The state requires parental notification for minors, limits elective abortions to the first 12 weeks of pregnancy, and provides legal protection for doctors and hospitals that opt not to provide abortions. (State law also covers pharmacists who decline to dispense birth control with a "conscience clause.") The majority of South Dakotans have identified themselves in polls as "pro-life," and politicians are well advised to do so as well. At the state's lone abortion clinic in Sioux Falls, Planned Parenthood flies doctors in from Minnesota to perform the procedure, as none of South Dakota's physicians do elective abortions.

In 2004 and 2006, lawmakers supported a ban--the 2006 ban passed 47 to 22 in the House, 23 to 12 in the Senate--at least in part because they feared their constituency would boot them for voting against it. But then in 2006, voters turned back the ban, 55.57 percent to 44.43 percent, after opponents hammered the point that the ban lacked exceptions for rape or incest victims or to protect the health of the pregnant woman. So sponsors of the ban redid it for 2008 with exceptions included--a watered down version that, according the only publicly released poll of 2008, had narrowed the margin to a dead heat. Almost everybody predicted a nail-biter. But voters rejected that measure by an equally wide margin of 55.21 percent to 44.79 percent.

A variety of theories have emerged to explain why there has been such a divergence between the supposed public opposition to abortion and the actual outcome of recent votes. Some suggest that a "reverse Bradley effect" was the cause. Just as voters in the 1982 California governor's race are believed to have lied about their intent to vote for a black candidate, South Dakota voters may have lied about their support for an abortion ban. "There's a lot of public pressure to be anti-abortion," explains Marvin Buehner, a Rapid City OB-GYN and South Dakota's most outspoken physician against the abortion bans. Buehner had predicted voters would reject the 2008 ban, but narrowly. "People are more likely to answer the poll that they'll support [a ban]. Then they get into the ballot booth and decide they just can't vote for something like that."

Another explanation that emerged after the 2006 general election is "abortion fatigue," which many political observers believe still has a hold on the state. The idea is that voters have gotten so tired of the abortion discussion that they did not listen to new messages from either side. Whether the 2008 proposal included exceptions seems to have been irrelevant, says Joel Rosenthal, chairman of the South Dakota Republican Party from 1985-1989 and 1995-2003. Rosenthal was one of a few--and perhaps the only--observer who predicted the margin would not waver from 2006. "Regardless of the debate, nobody listened to it," Rosenthal says. "I talked to 20 people, regular people--a store clerk, my guy at the post office, my barber. Nobody changed their mind."

Others suggest that the electorate, revisiting the debate over four years and consumed by it throughout 2006, has just gotten so educated on the issue that they are now uncomfortable with black-and-white formulations that bans contain. Politicians and grassroots organizers say their supporters now express more nuanced positions on abortion than the simple "pro-life" or "pro-choice" claims of the past. After the extensive 2006 campaign, South Dakota's electorate is now well-versed in specific circumstances--from rape and incest to a list of fetal anomalies (trisomy is a term now widely understood in the state) to any number of health complications--that could lead a woman to consider an abortion. It's difficult to mount a political campaign driven by sound bites with such a sophisticated electorate. Even State Senator Julie Bartling, who sponsored the 2006 bill in the state Senate, would not vote for her original ban. To get her support now, she explains, an abortion ban would need an exception to protect women's health, albeit one not too broadly drawn. "As far as I'm concerned, there would have to be some very defining language," she says. "The health of mother could be very, very broad, so the proper language has to be there."

Pro-life forces also can claim some credit for defeating the bill. In 2004, they feuded internally over the wisdom of passing a ban, given the make-up of the U.S. Supreme Court at the time; but in 2006, they set aside that argument in the name of unity. On the other side of the issue, any harmony that existed among factions of South Dakota's anti-abortion community evaporated by 2008. South Dakota Right to Life, a group that pre-dates the 1973 Roe v. Wade decision, officially opposed the 2008 ban, stating the exceptions made it unpalatable. Catholic bishops urged abortion opponents to vote for the ban anyway. Political science professor and blogger Ken Blanchard calls the in-fighting "a recipe for disaster in democratic politics."

Despite their back-to-back defeats at the polls, the anti-abortion activists driving the abortion bans have vowed to charge forward. On election night 2008, Leslee Unruh, head of the Vote Yes for Life campaign, stood before TV cameras repeating her refrain from 2006 to "never concede" defeat as volunteers packed up chairs and swept floors behind her. In an op-ed piece for the Sioux Falls Argus-Leader, her husband, Allen Unruh, compared the fight to end abortion to the fights to end slavery and racial segregation. "When we look back on history, our country now feels that public sentiment not only was reprehensible, but we have elected our first black president of the U.S.," he wrote. "This is not the beginning of the end. It is the end of the beginning."

But Rhoden says that after losing twice at the ballot box, lawmakers would be even less likely to pass an abortion ban now than they were in 2007, when such a bill died in a Senate committee. "A lot of legislators, the perception among them was that their constituency was behind them. I think they've lost a lot of that loving feeling," says Rhoden, who was then House majority leader. "I had caucus members come to me just panicked because they didn't want to vote again."

While it's generally agreed that South Dakotans haven't dramatically changed their view of themselves as "pro-life," Rhoden isn't the only one who thinks the well is poisoned. Blanchard, the political science professor, contends that the rapid-fire repeats of the issue have hurt pro-life efforts in South Dakota. "By making the [2006] bill so extreme, they made the right-to-life movement look like a bunch of nuts," he says. "Coming back two years later without any rest from the issue and producing a more moderate bill--but only a little more moderate--they may have permanently altered people's view of them as just a bunch of busy bodies."

Bartling, the state senator who sponsored the 2006 bill, agrees, but says the legislature will still probably pass less dramatic abortion restrictions in "bits and pieces." An all-out ban, however, would be dead on arrival. "I don't think you'll see that get through the legislature in the foreseeable future," she says. "The message is out there that if there's ever going to be a successful ban put through, it's going to have to come from a vote of the people." And as the past two elections have shown, that vote is unlikely to come any time soon.
By Denise Ross
Reprinted with permission from The New Republic
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