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Abortion wars — Chapter 3

Somehow in going through the legislative bills filed Monday, I missed the most “anticipated” of this year’s abortion bills. Sponsored only by Sen. Frank Kloucek, some of its basic provisions are no worse than some of the others. It allows abortion only if “necessary to preserve the life of the pregnant woman, or if there is a serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.” Violation is a Class 5 felony as opposed to the Class 1 felony that carries a life sentence under the other bills. (Currently, violation of the abortion laws is a Class 6 felony).

What makes it stand out are other details. For example, there is a legislative finding that “the life of a human being begins when the ovum is fertilized by male sperm.” Another finding concludes that “abortions terminate the constitutionally protected fundamental interest of the pregnant mother in her relationship with her child and abortions are performed without a truly informed or voluntary consent or knowing waiver of the woman’s rights and interests.” The bill considers a woman “pregnant” from the moment of fertilization. And it defines an “unborn human being” as “an individual living member of the species homo sapiens throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and childbirth.”

What is somewhat concerning about this latter definition is there is a legislative finding that “the guarantee of due process of law under the South Dakota Bill of Rights applies equally to born and unborn human beings.” Under both the federal and state constitutions, it is black letter law that due process includes the right to a fair and impartial hearing. Does this mean that an “unborn human being” is entitled to have someone (an anti-abortion entity perchance) appointed each time an abortion is sought for purposes of obtaining a court hearing on whether the abortion should proceed?

Given the fact he is the sole sponsor, Kloucek’s bill does not appear to have garnered much support. What is problematic is whether some of these troublesome due process approaches carry over.

Finally, let’s give credit to some of the Right to Life members in the Legislature. Like last year, they recognize that the key is not state legislation but the U.S. Supreme Court. Their legislative approach (SB 203 and HB 1249 discussed in Abortion Wars Continue) recognizes reality and does not put the state to the time and enormous expense of defending laws that will not survive scrutiny unless and until the U.S. Supreme Court overrules or modifies Roe v. Wade and its progeny.

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