Abortion amendment lawsuit challenged in federal court

The organization behind a constitutional amendment legalizing abortion in South Dakota has asked a federal judge to prevent an anti-abortion group from bringing a lawsuit against the voting law 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 says invalidates a June 13 lawsuit filed in Minnehaha County by the Life Defense Fund, which actively opposed the abortion law.

The Life Defense Fund, led by Republican state legislator Jon Hansen and longtime anti-abortion advocate Leslee Unruh, alleged in its lawsuit that those circulating the petitions violated a residency requirement introduced into state law in 2018.

This law was later replaced by Senate Bill 180, which was issued by a federal court in January 2023 as part of a permanent injunction signed by U.S. District Judge Lawrence Piersol.

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 are not even aware that the law under which they are trying to seek invalidation of our petition was itself invalidated over a year and a half ago and no longer exists.”

Hansen did not immediately comment Tuesday, but told News Watch that a lawyer for the Life Defense Fund would be sending a statement.

South Dakota is currently under the 2005 State Trigger Act, which was triggered in June 2022 when the Supreme Court left it to the states to determine reproductive rights in its ruling in Dobbs v. Jackson Women’s Health Organization.

The law makes it a Class 6 felony for anyone who “administers to a pregnant woman, or prescribes or furnishes to a pregnant woman” a drug that enables an abortion except to save the life of the mother.

If passed, Amendment G would prevent the state from regulating first-trimester abortions. During the second trimester, the state may regulate the decision to have an abortion, but any regulation must be reasonably related to the mother’s physical health. In the third trimester, abortion may be prohibited unless it is necessary to preserve the life or health of the pregnant woman, in the opinion of her doctor.

On May 16, South Dakota Secretary of State Monae Johnson’s office approved the dissolution for the November 5 ballot, stating that a random sample showed that 46,098 signatures were considered valid, well above the threshold of 35,017.

Nearly a month later, the Life Defense Fund and attorney Sara Frankenstein of Rapid City filed a complaint in state district court asking for the amendment to be thrown out. She also asked the court to prohibit Dakotans for Health and those who worked with or for it from engaging in petition drive or ballot campaigns for a period of four years.

Of the five allegations detailed in the complaint as alleged violations, several were amended by clashes between the Life Defense Fund and Dakotans for Health during the petition campaign and legislative session.

Among these allegations are that distributors left petitions unaddressed, failed to provide distributor leaflets as required by law, and intentionally misled the public through “bait and switch” involving food tax and abortion drugs.

Attorney General Marty Jackley sent a letter to Dakotans for Health on October 31, 2023, mentioning “video and photographic evidence” of such meetings and warning of potentially illegal actions by petitioners. No charges were filed.

Jim Leach, a Rapid City attorney representing Dakotans for Health, called the allegations “fraud and exaggeration” in a February interview with News Watch.

The first allegation listed in the Life Defense Fund lawsuit alleges that Dakotans for Health distributors violated the residency certification requirement introduced into state law in 2018 by House Bill 1196, sponsored by former state Rep. Mark Mickelson .

Coined by the plaintiffs, “Mickelson’s Law” created a state registry of people circulating petitions and required them to provide personal information and wear identification. It included a provision requiring an affidavit to be filed with the Secretary of State’s office providing information confirming the residence of each person sending petitions.

“Failure to substantially comply with the provisions of this section will disqualify petitions from the petition originator that do not substantially comply with the provisions of this section from consideration,” the law says.

Former liberal blogger Cory Heidelberger sued the state and was represented by Leach, who argued that the bill violated distributors’ First Amendment rights because of their political viewpoints. They succeeded and the law was overturned.

Then came Senate Bill 180, passed in 2021, with similar goals to HB 1094 but focusing solely on paid disseminators, citing the need for the state to protect election integrity.

Judge Piersol issued a preliminary injunction in response to a lawsuit filed by Leach and Dakotans for Health, and on November 1, 2022, the 8th U.S. Circuit Court of Appeals upheld the injunction, calling the legal disclosure requirements “invasive and burdensome… as such, constitute a serious burden on speech.”

The order was transferred to district court, where Piersol ruled that the state was “permanently enjoined from enforcing Senate Bill 180.”

In its current complaint, the Life Defense Fund argued that because “there is no current bill amending the Mickelson Act, the Mickelson Act remains in its original form, unchanged. Mickelson’s Law is currently the law in South Dakota.”

Dakotans for Health included a document in its federal filing showing how state attorneys provided the plaintiffs with a written statement dated Jan. 24, 2023: “The permanent order includes the 30-day stay requirement challenged in your lawsuit.”

A statewide poll, co-sponsored by News Watch and the Chiesman Center for Democracy at the University of South Dakota, conducted in May found that 53% of respondents supported Amendment G to the Constitution, compared with 35% opposed and 11% undecided.

This is an increase compared to a similar survey conducted in November 2023, when 46% of respondents were in favor of this solution and 44% were against.

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 email every few days to receive stories as soon as they’re published. Contact Stu Whitney at [email protected].