Abortion Bans

NEAR-TOTAL WITH DELAYED EFFECTIVE DATE ("TRIGGER" BAN)

In 2005, South Dakota enacted a near-total ban on abortion, to become effective if the Supreme Court overturns Roe v. Wade.  The ban prohibits abortion unless an abortion is necessary to preserve a woman's life, and specifically applies both to surgical and medical (mifepristone) abortion. A person who performs a prohibited abortion could be imprisoned for up to two years.  S.D. Codified Laws § 22-17-5.1 (Enacted 2005).

AFTER 12 WEEKS

South Dakota's unconstitutional and unenforceable ban outlaws abortions performed as early as twelve weeks.  S.D. Codified Laws §§ 34-23A-27 to -33 (Enacted 1997).

South Dakota's ban is unconstitutional according to the U.S. Supreme Court's decision in Stenberg v. Carhart.  530 U.S. 914 (2000).  In Stenberg, the Court held that a similar ban, which lacked an exception to protect a woman's health and was written so broadly as to ban more than one procedure, placed an undue burden on a woman's right to choose.  Responding to the Stenberg decision, South Dakota's Attorney General at the time, Mark Barnett stated, "In practical terms, [the U.S. Supreme Court decision] means that the South Dakota statute is unenforceable. . . . Our hands are tied.  They've expressed the law and we must follow it."  Foes of 'Partial-Birth' Abortion Face Uphill Battle After Court Ruling, Assoc. Press, June 29, 2000.

South Dakota's unconstitutional and unenforceable law makes the performance of any abortion procedure that falls within a broad definition a felony, unless the procedure is necessary to preserve the life of a woman endangered by a physical disorder, illness, or injury, including a life-endangering condition caused by or arising from the pregnancy itself, and no other medical procedure will suffice.  S.D. Codified Laws §§ 34-23A-27 to -33 (Enacted 1997).

There is also a Federal Abortion Ban, which applies nationwide regardless of state law.  The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health.  In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure.  Click here to read more about the Federal Abortion Ban.