South Dakota Failed: So What Now?

The citizens of South Dakota through their elected legislators overwhelmingly passed a bill that, if ratified, would have stopped all abortions in that state except those necessary to prevent the death of the mother. Prior to its passage, the lawmakers there held extensive and comprehensive hearings on the issue. Both sides of the issue were thoroughly aired; I and many other pro-life experts personally testified before them and submitted additional information for their consideration. Clearly the law that passed was consistent with the wishes of the electorate of South Dakota.

Contrary to their usual practice of challenging through the courts, pro-abortion forces collected signatures and put on the ballot a statewide initiative to cancel the law. This led to an intense campaign prior to the November election. Pro-life forces were totally outgunned financially as huge sums of money came into the state to support the pro-abortion side of the argument. The pro-life side benefited from an influx of some financial help, but also from pro-life volunteers, both in leadership capacity and in simple grassroots work. When the votes were counted, the law had been voted down by a vote of 56% to 44%.

There was no question at all as to why the law lost. It could be summed up in one four-letter word, RAPE. Polls prior to the vote had consistently shown that because there was no exception for rape, the law would fail. On the other hand, similar polls had shown that if there was a rape exception to the law, it would have passed, by at least 55% to 45% or more. As a result, pro-abortion forces concentrated their effort on horror stories about rape pregnancies, and their strategy worked.

So What Now?
The South Dakota defeat really doesn’t make much sense. Assault rape pregnancies are a tiny fraction of 1% of the pregnancies in the United States and certainly are less than 1% of the abortions done.1 We know that more than half of the women impregnated in an assault rape situation elect to carry their babies to term in spite of the common, even intense, pressure to abort their children.2 We know that post-abortion syndrome is more common in women who abort a rape pregnancy than those who carry such a baby to term.3 We know that we should not kill an innocent baby for the crime of his father. We don’t punish other criminals by killing their offspring, so why permit it in this case? The cold, hard fact is that we can’t “prevent” it, and this is quite a different moral stance than to say we will “permit” it.

It seems obvious that if the solidly pro-life state of South Dakota can’t pass and maintain a law that has no rape exception, not many other states could either. Certainly such a law could not pass nationally. It also seems obvious that a major precedent has been set. Shy of a Supreme Court decision to the contrary, it looks as if, in the present climate, any legislative and possibly any judicial attempt to forbid abortion will almost certainly have to include a rape exception.

So if a clear precedent has been set, what South Dakota must do now, in its next legislative session, is pass a new law. This bill should have a rape exception. But when we say “rape,” we must be very specific. First, we must understand that the word itself has been given many meanings, i.e. statutory rape, date rape, marital rape, etc. Therefore the law must narrowly define this as “assault” or “forcible” rape. Secondly, it must be reported within a limited period of time. That time frame should be several days or a week at most. Clearly, a woman reporting the crime immediately after an assault is not going to have her word very seriously questioned. However, a woman alleging assault several weeks after, would very logically have her claim questioned. So the fact that she was forcibly raped, either plainly evident or clearly proven, must be not just be claimed. The third qualification would be that she report it to a responsible agency, that is, the emergency room of a hospital, a law enforcement officer, or similar responsible official. A simple claim, to one practicing physician, a week or more later with no further backup should not be considered adequate proof. In other words, the above restrictions are placed to simply make sure that she was in fact forcibly raped. There has been some experience in this regard. Pennsylvania, for a number of years, had simply mentioned rape as a justification for abortion. Under that scenario, over a hundred such rapes were reported and aborted in a year. When the law was tightened up, so as to make sure that the claim was in fact legitimate, the number of cases dropped into the single digits.4

Now What of Incest?
If this was forcible, it falls under “rape.” But most such cases are quasi-consensual, albeit often by a minor incapable of such consent. Here, all we can do is ask for some legitimate proof that this was incestuous intercourse. Such proof must also then entail removal of the victim from the circumstance that might otherwise be repeated later if there was an abortion. Again we object to this, for an innocent baby dies. I think it is an open question as to whether this should be in the new law. Sadly, for the purpose of passage it may have to be, for both rape and incest seem to be joined at the hip in the minds of the public.

Assuming all of the above, if such a law passes and is declared constitutional at the highest level, this would stop over 99% of all of the abortions done legally today.

We also note that this could be either a trigger law, such as Louisiana’s recent law, which goes into effect when Roe v Wade is overturned, or it could be a direct challenge that the Supreme Court acts upon.

I am sure the above scenario would be strongly resisted by many pro-lifers who would see it as a betrayal of a pure pro-life ethic. However, there are times when “the perfect is the enemy of the good” as well as recognizing that “politics is the art of the possible.” Recognizing that we cannot get the perfect at this stage of the controversy, I for one, am convinced that we should settle “for now” for the overwhelming good.

And then what?
Some years later, the public will become reeducated to the fact that we can and should protect unborn human life. They will become educated to the fact that large numbers of back alley abortions will not follow laws protecting preborn children, and that there will not be “blood running from the alley.” A new respect for all human life will slowly dawn upon, and be accepted by, the general public. When and if this occurs, then a final attempt can be made to wipe out these rape and incest exceptions, as well as to perhaps even recognize the fact that in a sophisticated medical climate there basically does not exist any problem that requires “killing the baby to save the mother.” But for now we should do what we can.


1 US Justice Dept. et al. In Abortion, Questions and Answers, Willke, Hayes Publishing Company, Inc., 2003, pp. 259-262.

2 Mahkorn, “Pregnancy & Sexual Assault.” In Psychological Aspects of Abortion, University Publishers of America, 1979, pp. 55-72.

3 US Justice Dept. et al. In Abortion, Questions and Answers, Willke, Hayes Publishing Company, Inc., 2003, p 267 / also Forbidden Grief, T. Burke, Acorn Books, 2001.

4 Until 1988 Pennsylvania Medicaid funded “rape” abortion, averaging 36 per month. In 1988 a new requirement of reporting to law enforcement agency took effect and it dropped to 3 a month. Source: Pennsylvania Abortion Control Act, 1988.

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