PIERRE, S.D. (KELO) — During the 2005 legislative session, then-Rep. Joel Dykstra was prime sponsor of HB-1249, what’s known as a trigger law, that would prohibit the performance of nearly all abortions in South Dakota at some future date when “the states are recognized by the United States Supreme Court to have the authority to regulate or prohibit abortion at all stages of pregnancy.”
That day arrived 17 years later, on June 24, 2022, when the nation’s highest court issued the Dobbs v. Jackson Women’s Health Organization opinion that reversed the 1973 Roe v. Wade opinion and the 1992 Casey opinion.
This week KELOLAND News asked the Sioux Falls developer about getting South Dakota’s ban into place and a current effort to reverse it.
Given that it was prospective, was it difficult to pass? And was it difficult to get signed into law?
Dykstra: “This process started in 2004 with a very different bill that was drafted based on a significant amount of legal strategy and with the clear intent that it would be litigated, possibly to the (U.S.) Supreme Court. The sponsors of that bill intentionally brought it in 2004 because it was believed that it would not be referred in the year that John Thune was challenging Tom Daschle (for the U.S. Senate.) What they failed to anticipate was that Governor Rounds would veto the bill on ‘style and form’ and the Legislature would not override the veto.
“We brought the trigger bill in 2005 as a clean platform for debate on the issue. It received a significant amount of debate in committee and on the floor of the House. There was an effort to amend to include a ‘health of the mother’ exception but ultimately that failed because it was too broad. The legislators felt that ‘health’ could include minor or major issues and without a boundary it was left as is, with only the exception for threat to the life of the mother.
“Once it passed in the House the Senate took it up in committee with a couple other abortion bills that received a lot more attention. There was very little resistance in the Senate and I don’t recall any difficulty getting the governor’s signature. I suspect it went through partly because most people didn’t think it would ever take effect.”
Were you surprised there wasn’t an effort to refer the legislation to a statewide vote?
Dykstra: “I also suspect it did not draw a referral effort because most people didn’t think it would ever take effect. They knew it would come up again in the following years and whether calculated or not, chose to save their efforts for a bill that could impact abortions immediately.”
The Legislature approved HB-1215 in 2006 that called for outlawing abortion other than to prevent the death of the mother. It was referred for a public vote and subsequently rejected. Was the voters’ response surprising?
Dykstra: “Polling indicated that without exceptions for rape and incest the public was likely to vote against the law. I don’t think most people were surprised by that outcome.”
In 2008, voters rejected an initiated measure that would have banned abortions but provided some broader exceptions for the life or health of the mother and for rape or incest. It also was rejected. Was the voters’ response surprising?
Dykstra: “If I recall correctly the polling indicated in 2008 that it would be close. I was surprised that even with the exceptions for rape and incest and health of the mother the public was not willing to support that law. I think it was as much a rebuke of bringing the issue back year after year. The public was tired of it.”
Currently there is a petition drive to initiate a state constitutional amendment that would restore abortion rights in South Dakota. It would overturn the 2005 trigger law. There is also a ballot-measure committee opposing the effort, to which you and your spouse have given $1,000. What are your thoughts on the attempt to ask voters to revisit the question?
Dykstra: “I think the issue will turn on how much the public understands about the radical application of the proposed amendment that would allow abortions up to the moment of birth. We support the effort to oppose the amendment and to educate the public about how far outside the majority’s desire for reasonable restrictions.”