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November 4, 2008 4:06 PM

ELECTION 2008: South Dakota Voters Consider Abortion Ban

Posted by Rachel Breitman

Several of this year's election day ballot measures ask voters to weigh in on the always-controversial matter of reproductive rights law.

In California, voters will consider whether to require parental notification for teen abortions. In Colorado, they will vote on a referendum defining the beginning of human life at fertilization. And Michigan voters will evaluate whether to legalize research on donated embryos from fertility clinics.

Most thorny of all may be South Dakota's Measure 11, a proposed ban on all abortions except in the case of incest, rape, and serious threat to the health of the mother.

Two years ago, the state failed to pass a similar referendum that also excluded exceptions for rape and incest. This year's proposal, written with the help of South Dakota Attorney General Larry Long, has shown enthusiastic support from South Dakota citizens, who gathered three times the required number of signatures to get the matter on the ballot.   

The state also is involved in ongoing litigation with Planned Parenthood over a  law requiring doctors to tell patients that abortions end a human life and can cause psychological harm to the mother. Another South Dakota law requires doctors to ask women if they want to see fetal sonograms.

Anti-abortion advocates say this year's ballot measure complies with the federal constitution or previous abortion legal precedent.

"Planned Parenthood v. Casey [a 1992 Supreme Court decision analyzing which types of limits states can put on abortion] says there cannot be an undue burden limiting abortion rights," says Linda Schlueter, the president of the Trinity Legal Center, a reproductive law center. "I don't think it places an undue burden. All of these propositions are within the authority of the state and consistent with what the Supreme Court has instituted."

But some lawyers say the ballot initiative is purposely unconstitutional, designed not only to limit abortion in South Dakota, but to overturn nationwide abortion protections.

"This initiative is clearly designed to challenge Roe," says Leon Silver, a partner at Shughart, Thomson & Kilroy in Phoenix who has represented Planned Parenthood pro bono on matters regarding access to abortion clinics, parental consent, and informed consent statutes.  Silver says that the exceptions for life of the mother in South Dakota law are more narrow than in Roe v. Wade or Planned Parenthood v. Casey. "It will likely be challenged in South Dakota federal court and potentially be appealed to  the Supreme Court."

Whether the South Dakota matter has national legal precedent could also depend on the result of the day's election.

"Justice Kennedy has proven receptive to restrictions on abortion, but he might not go so far as to uphold an outright ban like this," Caitlin Borgmann, an associate professor who teaches reproductive law at CUNY School of Law, tells The Am Law Daily. "This will depend on the presidential election and Supreme Court appointments."

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