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INITIATIVE

You can view the initiative in PDF format here.

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ITEMS OF INTEREST


Read the Trigger Bill Memo

Endorsements from Prominent Americans

Read Initiated Measure 11
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Read the Taskforce Report

FREQUENTLY ASKED QUESTIONS

The Constitutionality of Initiated Measure 11

If enacted by the People of the State of South Dakota, is the constitutionality of Initiated Measure 11 likely to be challenged in court by the abortion industry?

Experienced lawyers on both sides of the abortion debate agree that a court challenge to Measure 11 is virtually certain.

What does the Constitution actually say about abortion?

 The Constitution is silent on the issue of abortion.

What will the abortion industry argue in support of their position that the measure is unconstitutional?

While the abortion industry is likely to make several arguments, the argument most likely to be most strongly asserted is that the South Dakota law “unduly burdens” a woman’s right to obtain an abortion prior to the unborn child being able to live outside the mother’s womb.

Why in 1971 did the US Supreme Court strike down the abortion law of Texas in Roe v. Wade?

The Court characterized laws prohibiting abortion as primarily directed toward protecting the health of pregnant women.  Although not expressly included in the Constitution, the justices found that a woman had a right to terminate her pregnancy, and that right was protected by the Fourteenth Amendment.  The woman’s right was stronger than any right that the unborn child might have, since the Court rejected the claim that the unborn child was a constitutional person, instead classifying the fetus as “potential human life.” 

Based on the evidence before it at the time, the Court concluded that abortion in early pregnancy was relatively safe with increasing risks as the pregnancy progressed.  These increasing risks allowed the state to regulate the abortion procedure during the second trimester of pregnancy. When combined with the state’s interest in protecting potential human life, the state could ban most abortions during the third trimester.  

How is Initiated Measure 11 different from the Texas law struck down in Roe v. Wade?

The Texas statute allowed abortion only to save the mother’s life, in contrast with Measure 11 which allows abortions in cases of threat to the mother’s life or physical health, or in cases where the pregnancy is the result of rape or incest.

Does the Court still apply Roe v. Wade?

For decades after Roe v. Wade, the Court reviewed various state regulations of abortion.  Some laws were struck down as violating Roe, while others survived.  Sometimes laws that were largely identical were struck down in one case and upheld in another.  The resulting confusion required the Court in 1991 to reconsider Roe in Planned Parenthood v. Casey.  

What did the Court say in Planned Parenthood v. Casey?

At least five (and maybe as many as seven) of the nine justices agreed that Roe v. Wade was wrongly decided. Prior to the Casey opinion, Justices Rehnquist, White, Scalia, Thomas, and Kennedy were believed to oppose Roe, while the positions of Justices O’Connor and Souter were less clear.  Nonetheless, Justices O’Connor, Kennedy, and Souter, in an opinion known to lawyers as the “Casey plurality” refused to return the issue of abortion to the people. (A plurality opinion is an opinion in a case where a majority of the justices agree on the outcome, but they could not agree on why.)  Instead, these three justices argued that the court must continue to protect abortion as a constitutional right because the American people had “organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.”

The Casey plurality held that “viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on non-therapeutic abortions.”  In other words, laws that prohibit abortions before the baby could live outside the mother’s womb must be justified on some basis other than protecting the life of the unborn child.  Justices O’Connor, Kennedy, and Souter also tell us that laws that prohibit or limit abortions before the baby could live outside the mother’s womb can not “unduly burden” the woman’s right to obtain an abortion.  “An undue burden exists, and therefore a law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”  The “undue burden” standard was used (and therefore implicitly adopted) by a majority of the court when in 2000 it ruled that Nebraska’s partial-birth abortion ban was unconstitutional.  It was also used in 2007 when the Court upheld the Federal Partial-Birth Abortion Ban.

How is Initiated Measure 11 different from the Pennsylvania law in Planned  Parenthood v. Casey?

The Pennsylvania law required abortion providers report various public health information to the government; required women be offered specific information regarding pregnancy and available programs of assistance during pregnancy and early childhood; required parental consent prior to performing an abortion on a minor and spousal notification prior to performing an abortion on a married woman; and provided a limited health exception to these regulations in cases involving “serious risk of substantial and irreversible impairment of a major bodily function” of the pregnant woman.  The Court upheld the constitutionality of all of the provisions, except spousal notification.  Unlike Measure 11, the Pennsylvania statute merely regulated abortion.

What impact does the most recent Supreme Court abortion case in 2007, Gonzales v. Carhart, have on understanding the constitutionality of Initiative Measure 11?

In Gonzales v. Carhart the Court applied the usual rule of constitutional law that legislators may address risks to the public’s health, notwithstanding conflicting medical opinions about the existence and extent of those risks.  Application of this rule to Initiative Measure 11 greatly increases the likelihood that the Court will uphold the constitutionality of the law.

How is Initiated Measure 11 different from and similar to the Federal Partial-Birth Abortion Ban upheld in Gonzales v. Carhart?

The Federal Partial-Birth Abortion Ban only prohibited a particularly gruesome method of abortion in the second half of pregnancy.  Initiated Measure 11 prohibits all forms of abortion, except in cases involving pregnancies resulting from rape or incest, or in cases where continuation of the pregnancy threatens the mother’s life or physical health.

The process of developing the Federal Partial-Birth Abortion Ban and Initiated Measure 11 were similar.  Both laws were the result of extensive hearings involving the testimony of experts and citizens regarding the abortion and its effect on women’s health. Similarly, the factual findings set forth in Section 1 of Initiative Measure 11, are based on four full days of hearings held before the non-partisan South Dakota Task Force to Study Abortion  involving the live or written testimony or reports of 47 expert witnesses, and approximately 3500 pages of written materials, studies, reports and testimony, including close to 2000 women who have had abortions, 99% of whom testified that their abortion was “destructive of the rights, interests and health of women and that abortion should not be legal.”

What standards has the Supreme Court stated it would use to consider whether it ought to overrule one its prior holdings, like Roe v. Wade?

How does the Task Force Report on Abortion in South Dakota relate to understanding the constitutionality of Initiative Measure 11?

The legislatively-established task force gathered evidence regarding the practice of abortion, and its impact on women and unborn children. The Task Court Report provides a summary of the evidence and the reasoning and conclusions of members after holding several days of hearings and reviewing thousands of pages of testimony and submissions. The Task Force concluded:

·           Unlike other medical procedures conducted within the framework of a traditional physician-patient relationship, the vast majority of abortions are performed in abortion clinics where women do not meet the physician until the beginning of the abortion procedure.

·              Abortion subjects women to serious medical risks.

·              Abortion is not safer than childbirth

·              Many abortions are obtained because the mother is pressured by her male partner, abortion providers, her parents, or the societies at large, who rely upon the legal availability of abortion as a method to dispose of the mother’s child, in order to avoid helping the mother in her time of need.

·              State regulation has not been able to protect the well-being of women.

Does the Court have to overrule Roe v. Wade or Planned Parenthood v. Casey to uphold the constitutionality of Initiated Measure 11?

No, it is not necessary for the justices to overrule Roe v. Wade or Planned Parenthood v. Casey.  Like the three justices in the plurality in Planned Parenthood v. Casey, they need only redefine what these cases mean, in such a way to allow states to protect maternal and fetal health throughout pregnancy by limiting the availability of abortion to cases of rape, incest and threats to the mother’s life and physical health.

Why do the proponents of Initiative Measure 11 believe the law is constitutional?

First, there have been dramatic advances in our scientific understanding of pregnancy and the nature of the human fetus.  At the time Roe was decided, the child within the womb was largely a mystery. There was no such thing as perinatal medicine, which focuses in large part on the care of the child within the womb. Now, we routinely take pictures of the child’s development, test the baby within the womb for a variety of medical conditions, and when necessary, even perform surgery on the baby while he or she remains in the womb of the mother.

These scientific advances were an important part of persuading the federal courts that the 2005 South Dakota Informed Consent Law was constitutional.  The law requires that women seeking abortions be informed “t]hat the abortion will terminate the life of a whole, separate, unique, living human being.”  In upholding the law, judges on the US Court of Appeals for the Eighth Circuit wrote on June 27, 2008, “[t]he State's evidence suggests that the biological sense in which the embryo or fetus is whole, separate, unique and living should be clear in context to a physician, and Planned Parenthood submitted no evidence to oppose that conclusion.” Based on the evidence, there was no dispute that a human fetus is a human being.

This is important to the abortion debate, because in Roe the Supreme Court confused the issue of the humanity of the unborn with the question of their constitutional status.  There are literally billions of human beings who are not constitutional persons, because they were born and live outside the United States. They are not protected by our Constitution, yet no one questions that these people are human beings. 

Similarly there are “constitutional persons” that clearly are not human beings.  For example, the Supreme Court has ruled that American corporations have certain constitutional rights.  So whether or not it is true that the unborn child is not a constitutional person, it is clearly true that he or she is a human being.  This fact is relevant to the question of whether South Dakotans can constitutionally limit abortions to cases involving more substantial reasons that personal convenience or failed birth control.

The second reason Measure 11 may be upheld as constitutional is the Supreme Court’s reasoning in the case involving the constitutionality of the Federal Partial-Birth Abortion Ban.  In Gonzales v. Carthart, the Supreme Court upheld the Federal Partial-Birth Abortion Ban, even though it prohibited the performance of such abortions both BEFORE and after viability. The court sustained the law, in large part, due to the comprehensive legislative record that established the possible risks that partial-birth abortions posed to women’s health, and that the procedure was never the only method of preserving women’s health or life. 

Similarly the South Dakota legislature held extensive hearings on the impact of abortion on women’s physical and psychological health and the practices of South Dakota abortion providers.  Based on the evidence presented at these hearings the legislature concluded that it was desirable to limit abortions to cases of rape, incest, and threats to the mother’s life or physical health.  This is the genesis of Initiated Measure 11 – a desire to protect women’s physical and mental health. 

What happens if the Court upholds Initiated Measure 11?

INITIATED MEASURE 11, IT'S WHO WE ARE IN SOUTH DAKOTA

Initiative 11 is a reflection of who we are as a people in South Dakota, a reflection of our values and love of life.  It speaks to our culture that cherishes children and the true rights of their mothers. It speaks to the sovereignty of South Dakota that chooses to assert its own values and have those values reflected in the laws of our State. An abortion terminates the life of a whole, separate, unique, living human being. 

Our state was the first state in our nation to require an abortion doctor to disclose this biological fact to a pregnant mother considering submitting to an abortion. The entire U.S. Court of Appeals ruled that it is proper for our state to require disclosure of that fact.  In the public hearings over the past five years before our legislature and a special Abortion Task Force, almost 2,000 women testified, in person, or in writing, about the pain, despair, isolation, depression and even attempted suicides resulting from their realization that they were involved in terminating the life of their own child.  The pain of these women was so profound that even the hardest of hearts were moved to compassion and tears.

Initiative 11 was drafted by South Dakota’s Attorney General and a panel of 11 legal experts.  It is well thought out, and well crafted to meet the wishes of the majority of South Dakotans.  It eliminates the use of abortion as a means of “birth control.”  While many would like to see a prohibition on abortion without exceptions, this bill reflects the will of the majority to limit use of abortions only to those circumstances where the pregnancy is the result of rape or incest, or where there is a substantial risk of serious permanent injury or death to the mother.

A mother’s unique relationship with her child during pregnancy is the most intimate, most important, and one most worthy of protection.  The unique bond between mother and child creates a human relationship that may be the most rewarding in all of life. As the South Dakota Abortion Task Force wrote in 2005, we have a duty to choose life over death; the mother’s beautiful interest in her child’s life over its destruction; the protection of innocent children over the misguided philosophies and trends in social thought that come and go. If there are any self-evident and universal truths that can act for the human race as a guide or light in which social and human justice can be grounded, they are these: that life has intrinsic value; that each individual human being is unique and irreplaceable; that the cherished role of a mother and her relationship with her child, at every moment of life, has intrinsic worth and beauty; and that this relationship, its unselfish nature and its role in the survival of the race is the touchstone and core of all civilized society.  Its denigration is the denigration of the human race. This relationship,  its beauty, its survival, its benefits to the mother and child, its benefits to society, all rest in the self-evident truth that a mother is not the owner of her child’s life – she is the trustee of it. 

Vote “yes” on 11 Nov. 4. Give South Dakota’s unborn a voice.

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THE BASICS ON INITIATED MEASURE 11

Initiated Measure 11 will stop abortion from being used as birth control.  It will protect the lives of unborn children, and the interests and health of pregnant mothers, by prohibiting abortions except in cases where the mother's life or health is at risk, and in cases of rape and incest.

Initiated Measure 11 contains the following exceptions:

1) Life of the Mother
2) Health of the Mother
3) Rape of the Mother
4) Incest

As any questions arise, please advise the individual to read the initiative. However, some common questions are arising regarding these exceptions that include the following:

1) Can any woman who says she's been raped or is a victim of incest automatically have an abortion?

No, in sections 5-8 of the initiative, it clearly defines that a woman who indicates she has been raped or is the victim of incest must report the crime prior to seeking an abortion. The abortion clinic is responsible to ensure that the proper reporting has been completed. The reporting includes contacting proper authorities with the woman's name and contact information, details regarding the rape or act of incest and any details regarding the perpetrator. Further, the abortion clinic must obtain the woman's consent to collect evidence from the abortion for DNA analysis and within 24 hours make arrangements to provide the sample to the law. Also, the abortion clinic is responsible to provide counseling referrals to the victim.

2) Does the health exception allow for any woman who says she is suffering emotionally or mentally to have an abortion?

No, in section 4 of the initiative it clearly defines what would constitute a health exception and it does NOT allow for emotional or mental issues. The initiative defines health as a "...serious risk of a substantial and irreversible impairment of the functioning of a major bodily organ or system of the pregnant women should the pregnancy be continued and which risk could be prevented through an abortion, unless in reaching that judgment the physician knowingly disregards accepted standards of medical practice."

3) Why would we want to allow abortions in these cases? Why can't we save all of the babies?

An all out ban on abortion was voted on in 2006 and only 44%, at that time, voted to end abortion in all cases. Polling indicates that a strong majority of South Dakotans will vote to end abortion as birth control allowing for exceptions for rape, incest and health of the mother. Over a dozen attorneys came together, including Larry Long, South Dakota Attorney General, to write this initiative to ensure the strongest language that would be protected in the court of law.

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DON’T BE FOOLED BY OUR OPPONENTS AND THEIR ABORTIONIST NETWORK.

The People’s Initiative that will appear on the November ballot is a totally South Dakota led and inspired initiative. Here are the facts:

PRO-LIFE BILL:

• The signatures obtained to place the initiative on the ballot are ALL SOUTH DAKOTA VOTERS.

• All of the persons who collected the signatures of these South Dakota voters are ALL SOUTH DAKOTA RESIDENTS, without exception.

• These SOUTH DAKOTA RESIDENTS who collected the petition signatures are UNPAID VOLUNTEERS, acting to PROTECT THE VALUES OF OUR STATE.

• This Bill is the Bill of the people of South Dakota.

BY CONTRAST:

The 2006 petition drive to place the Legislature’s Bill on the ballot supported by our opponents:

• Collected signatures by many out of state people paid on the basis of the number of signatures they obtained.

• Most of the money to wage the abortionist’s campaign came from out of state.

• It was supported by the national abortion industry that profits from the abortions.
  

FACT:

THE ABORTION INDUSTRY that has imported abortion-for-birth control to South Dakota is HEADQUARTERED IN NEW YORK CITY. PLANNED PARENTHOOD FEDERATION OF AMERICA is a huge northeast corporation that has affiliates all over the country.

We have abortion on demand in South Dakota because they imported it to our state. THE MINNESOTA BASED AFFILIATE OF PLANNED PARENTHOOD FEDERATION OF AMERICA flies abortion doctors from OUT OF STATE into our state to do abortions and go back
home.

DON’T LET NEW YORK’S PLANNED PARENTHOOD FEDERATION OF AMERICA FOOL YOU. This year’s Abortion Bill reflects the values of South Dakota. Don’t let Planned Parenthood Federation of America impose its values on South Dakota with misleading claims

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50,000,000 AMERICANS KILLED
Sept 11, 2008
Dear Supporters,
On September 11, 2001 a great tragedy struck this country.  3000 Americans were killed instantaneously.  Every day a greater tragedy occurs—abortion.  Roughly 50 million Americans have been killed since the Roe v. Wade decision in 1973.  A generation has been lost. 

Joel 1:14 “Declare a holy fast; call a sacred assembly.Summon the elders and all who live in the land to the house of the Lord you God, and cry out to the Lord.”

Don’t let September 11 be simply another day on the calendar.  Gather at your county courthouse to cry out for a Christ awakening in our nation and in your local community.  Make it a day of prayer fasting to plead the case of the unborn before the holy and righteous Judge.  To locate the nearest event to your county check out this website, www.awakeningamerica.us.  Be sure to wear your VoteYesForLife.com t-shirt.

IN LOVING MEMORY OF BILL CONNOR, 1958-2008

My name is Bill Connor.   My story entitled, “I WAS AN EXCEPTION”, appeared in many newspapers and other publications throughout South Dakota in the last Vote-Yes-For-Life campaign.  It was my hope that by telling my story of my mother’s rape would personalize the issue with a name and face that some might recognize.  You see, I was conceived in rape and my life is my precious gift.  Without life, there is no story, no love, children, friends, family or precious memories.  Today in the business of abortion, rape is simply a legal matter, that current law, and public opinion, deems the most extreme response as acceptable.  Thankfully, my Grandpa’s Catholic faith did not find this acceptable, and provided my mother the support she needed at our most vulnerable moment in time.

Unfortunately, we don’t live in a perfect world.   My mother was very young and made some bad choices, and my childhood was far from normal.  Her abusive relationships made neglect, abuse and poverty routine indignities that seemed normal to me as a kid.  Only as an adult, did I come to recognize how vulnerable children are to the ways of the world. Thank God that He inspired my Grandpa, some foster families, teachers and coaches to light another path for me to stay in school, excel in sports and inherit a new beginning to serve Him.  I am sure that many reading this article were not born at the perfect time in the perfect situation, with perfect parents who were able to meet every material need.  But like the living weed sprouting from the crack in the sidewalk, we can bloom where we’re planted.  

In a perfect world, with perfect people, we wouldn’t need a government.  However, to maintain a safe and functional society there is obviously a need to govern, and to be governed.  Our political system, imperfect as it is, is the best method we’ve devised to manage America’s governmental responsibilities.  It is this process, the politics of big money and self interest, that has corrupted the debate, confused the uninformed, and has obfuscated the truth to justify a modern political agenda.  Government needs to be “governed” too, and it is “we the people’s” responsibility to define government’s role, no matter the what the issue may be at the time. 

I want the people of South Dakota to know that I am unequivocally pro-life no matter how bad the circumstances.  Last year, the Yes campaign efforts to save all unborn life was defeated by Planned Parenthoods argument that the bill, previously enacted by the South Dakota legislature, was too “extreme” because it did not allow for the exception of rape and incest.  Even though these pregnancies are a very small percentage of the total number of abortions, this was the basis for their opposition.  Imagine, if you will, telling the 1500 passengers on-board the Titanic ocean liner that since the ship isn’t equipped with enough life boats for everyone, no one can board the “Yes for Life” boats!  

I recently learned that the Yes-For-Life organization is supporting a new bill that clearly allows for the rarest of exceptions.  And, of course, I immediately said YES.  Why, you ask, since I was the product of a rape, can I support this bill?  Because, this will allow virtually every passenger on board the “ship of life” to live.  And, not surprisingly, Planned Parenthood again stands in opposition.  This is real life politics, requiring the inspired to rise and be heard.  So don’t be confused, nor discouraged, this debate is contentious and often without reason, but silence is no longer an option.  I have no political agenda, and being self-employed sometimes can cause financial consequences for taking a stand.  But, like most Americans, we stand, and have stood, for the sanctity and dignity of human life, everywhere in the world. 

Today, my desire to live a full and abundant life is again threatened, not by abortion, but by cancer.  And again, I am considering every option available to save my life.  The voyage is precious, and much too short no matter how long each of us lives.  I desperately urge everyone who has read my story in the past to let your friends know that Bill Connor from Dell Rapids, is 100% behind this current Vote-Yes-For-Life initiative.  And when I meet the Lord and he asks me the big question, “What did you do for the least of these my brethren?”  I want to be able to tell him that I too stood tall for the most pressing issue of our time – the killing of God’s Holy image by the modern holocaust known as abortion.   

If so inspired, please contact everyone you know, talk about this to your friends and share my story.  I am confident that if we all do something, we will all be rewarded in time, God’s time.

He Made A Change, Bill Connor 

Re: Statement of Fact from VoteYesForLife.com about Initiated Measure 11 

Contact: Cherlyn Bosch, VoteYesForLife.com SIOUX FALLS, SD

—In 2006, the voters of South Dakota spoke loudly.  They wanted to stop most abortions in South Dakota, but also wanted exceptions to allow women to have abortions in cases of rape, incest, life and health of the mother.  Initiated Measure 11 meets the demands to include these exceptions.  This is a law requested by the people of South Dakota.

Current public polling shows a majority of South Dakota voters would vote “Yes” on Initiated Measure 11.  The campaign expects the number will increase to a healthy majority by election day and that the measure will pass with a large margin in November.  “After this passes, we will be out on the road with the Fleet for Little Fleet, AKA the big bus, ministering to and helping women and families across the state of South Dakota,” Leslee Unruh stated.  Regarding the defeat of Referred Law 6 in 2006, Unruh acknowledged, “I felt terrible for the women, families and children of South Dakota who still had to deal with the scourge of abortion.  I especially grieved for the post abortive women who gave their heart and soul working on the campaign.” 

South Dakota voters have responded with fervor!  58,000 people signed the petition to stop abortions from being used as birth control.  South Dakota has never seen that kind of support for a ballot initiative.  Now voters are going out into their communities spreading the word about Initiated Measure 11.  From parade walking to attending county fairs, the people of South Dakota are passionate about life and working hard to get this law passed in November. 

It is unfortunate that the opposition to Initiated Measure 11 is running their campaign from Washington, DC.  The VoteYesForLife.com campaign is based in South Dakota and run by South Dakotans.  It is clear that the national pro-abortion community is making their last stand in South Dakota by bringing in “big guns” such as Cecile Richards, President of National Planned Parenthood, and leaders from National Abortion Rights Action League.  The opposing campaign is shamelessly on their knees, begging for national help with this South Dakota law.    

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THE FACE OF SOUTH DAKOTA
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