There were only about a half dozen of them, but it was the first time they'd shown up at the state's single abortion clinic: veteran protesters in the abortion wars, carrying placards depicting bloody fetuses and aiming cameras at people headed for the clinic run by Planned Parenthood, a simple one-story structure on busy West 41st Street. One protester, in a hooded sweatshirt and camouflage jacket, called a woman leaving the lot a "baby killer" and when asked whom he represented, responded, "Jesus Christ."
Their arrival in this sparsely populated state, a little more than two weeks before voters here will decide whether to overturn a nearly complete ban on medical abortions, infuriated none other than Leslee Unruh, a leader in the state's journey to the March passage of the most restrictive law in the nation. In the process, she has earned a national name by helping to rewrite the antiabortion playbook. "I can't stand the way they do things," Unruh said last week about the protesters' in-your-face strategy. "The anger approach doesn't work because they have no compassion for the women going in there."
During an interview at the Sioux Falls headquarters of Vote Yes for Life, the organization she heads that's campaigning to uphold the state ban, Unruh spoke about her own abortion years ago and her campaign to focus not on confrontation but on the personal stories of women like her who have had or considered abortions. But activists on both sides are riveted by the bottom-line question voters here will answer next week: Can Unruh's new sell persuade South Dakotans to endorse a state law that ignores a U.S. Supreme Court precedent and makes no specific abortion exceptions in cases of incest or rape, or when a mother's health is threatened?
If the answer is no, then the probable conclusion-pending litigation of some sort-is that even abortion opponents aren't willing to so dramatically limit the rights of the mother. But if the answer is yes, then similar legislation is likely to move forward in other states, and so is a legal challenge that could reach the Supreme Court. National abortion-rights groups, alarmed by that possibility, have been working with a state coalition of medical workers, abortion-rights activists, and others to convince voters that the law should be repealed. The group, South Dakota Campaign for Healthy Families, gathered enough signatures earlier this year to get a challenge to the law on the ballot, arguing that it is unconstitutional and will compromise women's health.
"This is not just a ban; it also jeopardizes doctors who even want to talk to their patients openly and honestly," says Jan Nicolay, 64, a former educator and GOP state legislator who speaks for the coalition.
The law, on hold pending next week's vote, makes abortion a felony unless the woman's life is in danger. It also bars anyone-physicians and pharmacists included-from providing emergency contraception, except in cases where a pregnancy has not yet been determined by "conventional medical testing." Unruh argues that the law's minimal emergency contraception allowance provides a rape and incest exception. Planned Parenthood State Director Kate Looby calls that an "inane argument" because emergency contraception is only effective up to 72 hours after sexual contact and is already difficult to access in many parts of the state.
Fine print. South Dakota is one of only three states-Mississippi and North Dakota are the others-with a single clinic offering abortion services. Both sides in the debate converged on Jackson, Miss., this past summer as antiabortion protesters tried unsuccessfully to close that state's only provider. South Dakota already has few abortions-814 in 2004-and some of the nation's most restrictive laws. Those include a 24-hour abortion waiting period, a parental consent requirement for minors, and a law that allows pharmacies to refuse to provide contraception.
Though an early poll showed that voters in this conservative, antiabortion state thought the new law too severe, the numbers have tightened, and both sides say it will be a fight to the finish. The abortion question is one of 11 statewide ballot measures, but it's the one garnering the most attention. Final campaign finance numbers won't be filed until the end of October, but preliminary reports indicated that the move to overturn the abortion ban had received hefty support from Planned Parenthood and lots of individual donations from liberal bastions like New York and California. The campaign supporting the ban received most of its individual donations from South Dakota residents.
Privacy? No matter what happens next week, the South Dakota battle has renewed the national conversation on abortion, and there is much speculation about how the new Supreme Court members, Chief Justice John G. Roberts and Justice Samuel Alito, might vote if the case makes its way to the high court. Even with the two new conservative justices, however, the court, by a 5-to-4 margin, is expected to continue to support the 33-year-old Roe v. Wade privacy right that assumes abortion is an issue to be decided by a woman and her doctor. But that's not the only abortion question for the justices: The day after the election, the court will hear two cases dealing with "partial-birth" abortion.
Back in South Dakota, a recent candidates' forum at St. Mary Catholic School in Dell Rapids, just north of Sioux Falls, opened with a communal recitation of the Lord's Prayer. But the forum quickly turned to issues-rural economic development, methamphetamine and alcohol abuse among the young, state-sponsored video gambling, and a proposed cigarette tax. The ballot voters will mark here next week is chock-full of weighty questions-on same-sex marriage, for instance, and medical marijuana. But hanging over the evening was the specter of the abortion ban, the divisions it has created in the state, and the prospect of years of expensive legal battles, no matter who wins. "This is a tough deal for South Dakota," says Arnie Hauge, a GOP candidate for the statehouse who supports the ban. "It's like a tug of war, and this is where you grab hold of the end of the rope and hang on." U.S. News & World Report
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