Lawsuit over abortion amendment challenged in federal court
Court fight comes after statewide poll showed majority support among South Dakotans for Constitutional Amendment G on Nov. 5 ballot.
The organization behind a constitutional amendment to legalize abortion in South Dakota has asked a federal judge to prevent an anti-abortion group from pursuing action against the ballot measure in state court.
Dakotans for Health, which sponsored the Amendment G petition drive, filed a motion Tuesday to enforce a 2023 permanent injunction that it said invalidates a lawsuit filed June 13 in Minnehaha County by Life Defense Fund, which has actively opposed the abortion measure.
Life Defense Fund, led by Republican state legislator Jon 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.
Stu Whitney
That law was later superseded by Senate Bill 180, which was halted in federal court in January 2023 as part of a permanent injunction signed by U.S. District Judge Lawrence Piersol, an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 co-founder Rick Weiland said in a statement Tuesday that Hansen and Unruh are “wrong on the facts and wrong on the law. They aren’t even aware that the law they are trying to use to claim our petition should be invalidated was itself invalidated over a year and half ago and no longer exists.”
Sara Frankenstein, a Rapid City lawyer representing Life Defense Fund, told News Watch on Wednesday that Weiland is "very confused" about the legal framework of her argument and the law she cited was "never sued over and never struck down."
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.
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 signatures were deemed valid, well over the threshold of 35,017.
Nearly a month later, the 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.
Lawsuit continues same arguments
Of the five counts detailed in the complaint as alleged violations, several are 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.
Jim Leach, the Rapid City lawyer who represents Dakotans for Health, called the allegations “deception and overblown” in a February interview with News Watch.
The first count listed in the Life Defense Fund lawsuit alleges that Dakotans for Health circulators violated a residency affidavit requirement introduced into state law in 2018 with House Bill 1196, sponsored by former Republican state Rep. Mark Mickelson.
Coined the “Mickelson Law” by the plaintiffs, the law required petitioners to file an affidavit with the Secretary of State's office providing details such as driver license number, state of current voter registration, length of time at their current address and two previous addresses.
“Failure to substantially comply with the provisions of this section shall disqualify the petitions from a petition circulator not in substantial compliance with this section from being considered,” the law read.
Hansen sponsored a similar law in 2019, HB 1094, which created a state registry of petition circulators and required them to wear identification badges. That measure, signed by Gov. Kristi Noem, amended Mickelson's Law and removed the requirement for petition circulator residency affidavits.
Former liberal blogger Cory Heidelberger sued the state and was represented by Leach, who argued that Hansen's law (HB 1094) violated circulators’ First Amendment rights based on their political viewpoint. They were successful and the law was struck down.
Then came Senate Bill 180, passed in 2020 with a similar objective as HB 1094 but focused solely on paid circulators, citing the state’s need to protect the integrity of its elections.
Judge Piersol issued a preliminary injunction in response to a lawsuit from Leach and Dakotans for Health, and on Nov. 1, 2022, the 8th U.S. Circuit Court of Appeals upheld the injunction, calling the law’s disclosure requirements “intrusive and burdensome … as such, they are a severe burden on speech.”
The injunction was remanded to district court, where Piersol ruled that the state was "permanently enjoined from enforcing Senate Bill 180."
Life Defense Fund argued in its current complaint that because HB 1094 and Senate Bill 180 were struck down, the Mickelson Law still stands and so should petitioner residency affidavits.
"Mickelson’s Law was not litigated or struck down, so we are relying on the Mickelson Law and not SB 180," Frankenstein told News Watch. "(Weiland) has misrepresented that to both the federal court and the press."
Weiland counters that the state policy of residency requirements for petitioners was successfully challenged in federal court and permanently enjoined.
Dakotans for Health, in its federal filing, included a document showing lawyers for the state acknowledging in writing to the plaintiffs on Jan. 24, 2023: “The permanent injunction includes the 30-day residency requirement challenged in your lawsuit.”
On Thursday, Dakotans for Health filed a motion to dismiss in state district court claiming that because Life Defense Fund's allegations "rest on the precluded contention that the petition circulator residency requirement is enforceable, (they) fail to state a claim on which relief can be granted."
On the subject of petitioner misconduct and/or invalid signatures, the motion states that "plaintiffs have failed to state a claim on which relief can be granted, by failing to identify, within the 614 valid signatures, the additional 148...that plaintiffs would have to disqualify in order to invalidate the petition."
May poll found majority support for amendment
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.
That’s an increase from a similar poll conducted in November 2023, when 46% of respondents said they were for the measure and 44% were against it.
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.
