Anti-abortion group appeals judge's ruling to South Dakota Supreme Court
The group’s push for an expedited timetable is based on the Aug. 13 deadline for the Secretary of State to certify ballot questions to county auditors for ballots to be printed.
SIOUX FALLS, S.D. – Anti-abortion group Life Defense Fund has filed an appeal to the South Dakota Supreme Court in its latest attempt to keep an abortion rights amendment from reaching the November 2024 ballot.
The appeal comes after Monday’s decision by Circuit Court Judge John Pekas to dismiss Life Defense Fund’s lawsuit against Dakotans for Health, the grassroots organization behind Amendment G, which would enshrine to right to abortion in the state constitution.
Rather than addressing specific allegations of improper petition circulation raised in the complaint, Pekas questioned why the South Dakota Secretary of State’s office wasn’t named as a party in the lawsuit.
Stu Whitney
“I don't know how the Dakotans for Health can control the Secretary of State,” Pekas said during the hearing at the Minnehaha County Courthouse. “They submitted the (petition) information to the state of South Dakota and it has been accepted."
In the appeal, Life Defense Fund lawyer Sara Frankenstein calls that a misinterpretation of state law, which states that a summons and complaint “shall be served on each petition sponsor as a party defending the validated petition being challenged.”
The appeal, dated July 17, states that “the circuit court failed to apply the statute requiring Life Defense Fund to file a summons and complaint against Dakotans for Health. The court should move swiftly to reverse and remand the case to permit discovery to commence and the case to proceed forward over the next four weeks.”
The group’s push for an expedited timetable is based on the Aug. 13 deadline for the Secretary of State to certify copies of all ballot questions to county auditors for ballots to be properly printed. The appeal also requests that a new circuit judge be assigned if the case is remanded.
Rick Weiland, co-founder of Dakotans for Health, told News Watch that he stands by his comments after Monday's hearing that portrayed Life Defense Fund's legal gambit as another in a series of attempts to block the measure from reaching voters.
“I’ve thought all along that this was a bridge too far for them to think they could dismiss 55,000 South Dakotans based on some petitioner residency requirement that’s not on the books,” Weiland told News Watch after the hearing. “Every time they’ve tried to disrupt this and make it about something other than letting the people vote, they’ve been unsuccessful.”
Amendment set for Nov. 5 ballot
South Dakota is currently under a 2005 state trigger law activated in June 2022 when the Supreme Court left it up to states to determine reproductive rights with its ruling in Dobbs v. Jackson Women’s Health Organization.
The law makes it a Class 6 felony for anyone “who administers to any pregnant female or prescribes or procures for any pregnant female” a means for an abortion, except to save the life of the mother.
If passed, Amendment G would prevent the state from regulating abortions during the first trimester. During the second trimester, the state could regulate the abortion decision, but any regulation must be reasonably related to the physical health of the mother. During the third trimester, abortion could be prohibited except if it is necessary to preserve the life or health of the pregnant woman, according to her physician.
Stu Whitney
On May 16, South Dakota Secretary of State Monae Johnson’s office certified the measure for the Nov. 5 ballot, saying that a random sample showed 46,098 of the 54,281 submitted signatures were deemed valid, well over the threshold of 35,017.
Nearly a month later, Life Defense Fund and Frankenstein filed a complaint in state circuit court asking that the amendment be disqualified. It also asked the court to prohibit “Dakotans for Health and those who worked with or for it” from being involved in petition or ballot measure campaigns for a period of four years.
“If they had a complaint, they should have sued the Secretary of State,” said Leach. “She’s the one who counted all the signatures and then ruled. There were more than enough signatures to put this on the ballot so the people could vote. If they’ve got a problem with it, they need to talk to her.”
Federal judge declined to intervene
Life Defense Fund, led by Republican state legislator Hansen and longtime anti-abortion advocate Leslee Unruh, alleged in their lawsuit that petition circulators violated a residency affidavit requirement introduced into state law in 2018, among other charges.
That law was later superseded by Senate Bill 180, which was halted in federal court in January 2023 as part of a permanent injunction signed by U.S. District Judge Lawrence Piersol, an action upheld by the U.S. Court of Appeals.
Dakotans for Health filed a motion in federal court to enforce the permanent injunction, but U.S. District Judge Karen Schreier on July 5 ruled that state court proceedings should be allowed to continue before determining if federal intervention was warranted.
Actions of petitioners questioned
Of the five counts detailed in the complaint as alleged violations, several were recast from clashes between Life Defense Fund and Dakotans for Health during the petition campaign and legislative session.
Among those accusations are that circulators left petitions unattended, failed to provide a circulator handout as required by law, and purposely confused the public with a “bait and switch” involving the grocery tax and abortion measures.
Attorney General Marty Jackley sent a letter to Dakotans for Health on Oct. 31, 2023, that mentioned "video and photographic evidence" of such encounters and warned of potentially illegal actions taken by petition circulators. No charges were filed.
Leach called the allegations “deceptive and overblown” in a February interview with News Watch. On Monday, he stressed that it was important to let the people have their say at the ballot box as part of South Dakota’s longstanding initiative process.
“People want to vote," he said. "People signed petitions to vote. (Life Defense Fund) is saying that people shouldn’t be able to vote. Well, this is America. People should be able to vote.”
A statewide poll co-sponsored by News Watch and the Chiesman Center for Democracy at the University of South Dakota conducted in May showed that 53% of respondents support Constitutional Amendment G, compared to 35% opposed and 11% undecided.
This story was produced by South Dakota News Watch, a nonpartisan, nonprofit news organization. Read more in-depth stories at sdnewswatch.org and sign up for an email every few days to get stories as soon as they're published. Contact Stu Whitney at stu.whitney@sdnewswatch.org.