Yet another report on South Dakota's struggle over reproductive rights from South Dakota Searchlight.
Q&A: Podcast retraces SD’s path from ’06 and ’08 abortion votes to new ballot measure
by Seth TupperSome South Dakota voters who rejected abortion bans in 2006 and 2008 probably didn’t know there was already a trigger law in place that would end up banning abortion in 2022.
Lee Strubinger puts that hindsight to use in a new podcast, “Unplanned Democracy.” It examines South Dakota’s journey from those elections to this year’s vote on Amendment G, which would restore abortion rights. The measure is on the Nov. 5 ballot.
Strubinger is a politics and public policy reporter for South Dakota Public Broadcasting. He reported, wrote and produced the “Unplanned Democracy” podcast, which is narrated by Jackie Hendry, host of SDPB’s “South Dakota Focus.”
For audio from the ’06 and ’08 abortion fights, Strubinger relied on a 2008 documentary of the same name, produced by the late South Dakota journalist Denise Ross.
Strubinger found the documentary while covering South Dakota’s reaction to the U.S. Supreme Court’s 2022 Dobbs decision. The ruling overturned the constitutional abortion rights established by the court’s 1973 decision in Roe v. Wade.
A South Dakota trigger law passed by the Legislature in 2005 immediately banned abortions in the state after Dobbs, with one exception for abortions “necessary to preserve the life of the pregnant female.” That’s how South Dakota ended up with an abortion ban, after about 55% of voters defeated bans in each of the 2006 and 2008 elections.
Following is South Dakota Searchlight’s conversation with Strubinger about his new podcast, edited for length and clarity.
What did you set out to do with this podcast?
With the ballot question coming up, I felt it was really important that people needed to see kind of what it was like or be reminded of what it was like in ’06 and in ’08.
So I summarized the documentary a little bit. I would recommend watching the documentary and listening to the podcast, because Denise Ross laid out a lot more of the history than I do, and really showed what happened back in ’06 and ’08.
And then I kind of attempted to basically bring us from where the documentary ends up to where we are today, in the form of an audio podcast.
What’s it like to look back now at the abortion fights in 2006 and 2008, knowing that a trigger ban passed by legislators in 2005 was going to end up taking effect in 2022?
It’s ironic. Granted, those past elections were under the framework of Roe, so the conditions are a little bit different now, but voters said twice that they don’t want a ban.
And the ballot question in ’08 had exceptions for pregnancies as a result of rape or incest, and the thought was that it would end up passing overwhelmingly, because that was supposedly the big hangup in ’06. But voters rejected the ’08 ban by a similar margin.
I’m interested to see how this particular vote plays out, because I think it’ll give a very clear indication of where the state’s electorate is now.
A former legislator, Joel Dykstra, sponsored the trigger ban in 2005. It ended up taking effect 17 years later. What’s that say about the power one lawmaker can wield?
It stresses the importance of paying attention and staying engaged as to who gets elected and what they’re talking about and what they’re bringing up.
I don’t know the entirety of the conversation around that trigger law; I’m sure folks with Planned Parenthood and the American Civil Liberties Union were paying close attention, but I don’t know if the general public was, and it’s kind of interesting that while the ’06 and ’08 questions were being voted on and debated, the trigger law was there the whole time.
Do anti-abortion activists deserve credit for seeing back in 2005 that overturning Roe v. Wade was possible, while abortion-rights activists maybe didn’t see that?
I read a book by some New York Times reporters called “The Fall of Roe.” It basically looks at the last 10 years of America under Roe and the conditions that ultimately led to it coming down. And it wasn’t just folks in South Dakota — it was across the country, in terms of this confidence that Roe would be in place. And you have a group of anti-abortion forces from a bunch of different groups working together for this similar goal, and when you read that book, you realize how persistent they were in making sure that this happened.
Your podcast includes audio from the days and weeks after the Dobbs decision, when people took to the streets to protest. We haven’t really seen that kind of widespread public activism during the campaign on Amendment G, have we? How do you explain that?
If I were to guess, I would say it’s twofold — one being the role of the internet and online social media. I think a lot of it is playing out there. A lot of it is playing out in churches, as well.
Abortion is a very sensitive topic. It’s one of the most personal decisions that a woman can make — how to manage their pregnancy. And I just don’t think people are comfortable saying the word “abortion” right now. That could be for a number of reasons, politically, socially. I think that’s why it’s a little more quiet.
After the election, what’s the future hold for abortion policy in South Dakota?
I don’t see this as being over anytime soon, regardless of how this vote plays out.
If it passes, I think you’re going to see the state Legislature figure out what is and isn’t allowed, because the legislators aren’t going to change, in terms of the people holding office and their sincere convictions. Most of them are very opposed to abortion and have been for quite a while. They’re going to be trying to figure out what is and isn’t allowable under this new framework. And that’s going to get tested out in the courts.
Meanwhile, there is not currently a clinic in place that would provide first-trimester abortions like a Planned Parenthood-style operation. And that’s one of the concerns that the ACLU and Planned Parenthood have in relation to this — that if it passes, women in South Dakota would have a right to abortion in name, but maybe not so much a right to abortion in reality.
And if the ballot measure fails?
You still have a lot of folks in the health care field who want clarity on the state’s current abortion trigger ban. It has an exception for the life of the mother, but that doesn’t put them at ease when they’re facing a Class 6 felony from other language in the law that says you’d be guilty if you helped “procure” an abortion. They don’t know what “procure” means.
Also, pregnancy is complicated. Lots of things can happen during a pregnancy, and obstetricians I’ve spoken with that support the ballot question view it as giving them options to treat their patients in ways that they can’t right now. And there’s a concern just in terms of some obstetricians not being willing to practice here based on our current trigger law.
Also, there was an article written in 2022 by Harold Cassidy, a prominent anti-abortion lawyer, that he published before the Dobbs decision came out. He was basically arguing that the Dobbs decision would only take out about a third of Roe, and if you wanted to take out the other two-thirds of Roe v. Wade, you need to look at what they did in South Dakota to restrict abortion prior to the Dobbs decision.
And the roots of that go back to findings that were established in a 2005 task force on abortion. That task force tried to educate the courts that life begins at conception, and that there is an inherent constitutional right for the relationship between the mother and her fetus, and so I could see that being a framework going forward for maybe even a national abortion ban.
I’m not sure I understand why Planned Parenthood and the ACLU are not supporting Amendment G. Did you gain a better understanding of that during your reporting?
I would take a look at what was in Michigan with that abortion-rights ballot question, which was basically less about abortion and more about reproductive rights in general. It went a lot further than South Dakota’s ballot question goes. It didn’t deal with just abortion; it dealt with in vitro fertilization, it dealt with prenatal and postnatal care, and said the government can’t have a say in determining how you go about that. I think that is viewed by those groups as the direction to go post-Dobbs.
If you also look at other ballot questions that are being considered across the country, most of them are through the second trimester. Amendment G allows for abortion rights through the first trimester, and then restrictions can kick in during the second trimester and the state can ban it in the third with exceptions for the life and health of the pregnant woman. And so I think those organizations view this as more restrictive than what other states are considering.
Also when you look at the framework the South Dakota measure is trying to establish, which is the Roe framework, their argument is essentially that abortion-rights advocates need to look for something better than Roe, that Roe is the floor, but that Roe was ultimately overturned. And so they’re looking for something that is more ironclad than just a Roe framework.
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