In North Dakota, activists were happily surprised when Democrat Heidi Heitkamp beat Republican Rick Berg for the state’s open senate seat. But in South Dakota, pro-choice activists didn’t even have a victory win to revel in. The state not only didn’t make any gains when it came to protecting a woman’s right to choose, they may have lost ground in the last election.
Pro-choice legislators were already a dying breed in the state, and this election made the situation even more dire. The state senate has dropped from seven pro-choice members to just three who actively identify as such. In the state house, the number has gone from 16 to just seven.
Although Roger Hunt, the state’s leading anti-choice politician, is now out of office due to term limits, there may be another legislator ready to take over his mantle. Rep. Jon Hansen touts his faith and belief that the number one role of the government is “the protection of life and civil liberty.”
“It is a sad fact that government has neglected this role and millions of innocent people have been killed as a result. We must act to protect more lives from being lost as a result of abortions in our state,” Hansen says on his website, beneath a banner reading “Saving lives of the unborn in South Dakota.”
Hansen has already acted as a conduit for Americans United for Life model legislation to be proposed in the House, such as the 2012 bill to limit abortion coverage in the state’s implementation of the Affordable Care Act. In Hansen’s proposed bill, abortion would only be allowed to be covered by insurance exchanges in the state if it was to save the life of the pregnant woman, and an employee would have to inform an employer if he or she wanted to purchase a separate rider on his or her insurance plan in order to cover abortion.
As the 2013 legislative session looms, some wonder whether bills that were expected to be seen last year but didn’t make it into the calendar may once more pop up. The most likely contender is a state ban on abortions after 20 weeks, which was believed to be in the works in 2012 but ended up not coming to fruition because of already-ongoing legal action surrounding the 72-hour wait and mandatory crisis pregnancy center visit bill, which is still enjoined and being reviewed by the courts.
Nothing has changed since 2012, but Democratic state Senator Angie Buhl agrees that a 20 week or “fetal pain” based ban wouldn’t be a surprise if it were proposed in 2013. Despite the state voters consistently rejecting full bans when they are put on the ballot for a vote, the message that South Dakotans aren’t interested in curbing reproductive rights doesn’t sink in with the legislators who are elected.
“They think ‘Oh, they voted against a total ban, but that doesn’t mean they wouldn’t be happy with something less than that,'” Buhl told RH Reality Check. “They think even if they can’t pass a full ban, maybe they can if they just make it a waiting period…for nine months.”
For Buhl, one of the few pro-choice senators in the state, each session can be like walking through a minefield, trying to navigate potential anti-reproductive health bombs waiting to explode. Besides just outright hostile bills that seek to limit access to abortion or birth control, the state’s special legislative process known as “hoghousing” can turn any pro-active attempt to pass pro-woman legislation into a situation that can backfire on the authors and supporters.
Alisha Sedor, executive director of NARAL Pro-Choice South Dakota, remembered the time that Buhl and other senators proposed a bill that would force crisis pregnancy centers in the state to have better “truth in advertising” standards. The bill would open the potential where “any such pregnancy center could, under the law, be prosecuted for advertising containing any statement or omission, related to its services, that is ‘untrue or misleading’ and that the center ‘knew or should have known to be untrue or misleading’ when published.” Anti-choice activist Leslee Unruh, owner of Alpha Center pregnancy center and heavy backer of the 72 hour wait law, declared the passage of the bill could shut down every center in the state.
The law as written never made it up for a vote. Instead, a committee ‘hoghoused’ it, proposing an amendment that removed “crisis pregnancy center,” replacing it with “abortion provider.” The new bill would instead target and potentially shut down the state’s only abortion clinic.
“Not that our providers aren’t truthful in their standards,” Sedor explained. “But you never know what the legal implications of that sort of bill would be, especially with no time to prepare.”
Instead, pro-choice legislators and activists found themselves scrambling to kill off the bill that they had just introduced. “Now, here you are, on your feet, finding yourself testifying again against your own bill that is the opposite of what your brought up before.”
Hoghousing is a favorite tactic in legislation involving reproductive health, and was the means through which the infamous “shoot an abortion provider” bill in 2011 came into being. “That started as some legislation that seemed innocuous, but was just tweaking some language from a fetal homicide bill that was already in existence. Then one legislator hoghoused it and introduced it as justifiable homicide language. That was why we were so unprepared.”
As long as hoghousing is a tactic, it’s impossible to propose proactive, pro-reproductive health bills and not have it potentially twisted into anti-women legislation. “Once it is on the floor, you can’t do that sort of amending,” said Sedor.
But the only way to pursue proactive legislation is to guess what committee it will go into. And even if it gets to the floor it could be hoghoused when it gets to the other chamber. Even guessing what committee it will go into can be hard since legislators will send bills into committees where they know there will be less support for proactive measures.
Until there is more support for reproductive rights among those who are elected to Pierre, pro-choice groups and politicians will be constantly playing defense. So far, that’s a task that has been growing more daunting cycle by cycle. Ballot measures put out to voters keep failing, yet the same people who propose these measures are elected back into office year after year. “It’s a kind of disconnect between ballot initiatives not just on choice, but on progressive issues generally,” said Sedor. “The same people in the legislature who proposed it are back again. So it’s this disconnect in the electorate between the issues that they care about and the voters they support. Bridging that gap will be very important.”
Buhl agreed. “It’s the same as what you see nationally. Congress will have a nine percent approval rating, yet 80 percent of incumbents win their reelection. Voters associate the bad bills with the faceless politicians in Pierre. They don’t attach them to their own candidates. They like them.”
With their hands basically tied in the state house, and their numbers dwindling, it would seem as if those who support women’s health care and basic reproductive rights would be frustrated and discouraged. Instead, leaders like Buhl are still looking for a silver lining in an ongoing struggle to urge legislators to end their attacks. One such bright spot? Wins across the country have shown the state Democratic party that people are anxious to end the Republican party’s dominance on the so-called “social issues” and stop the GOP’s war on women and their bodies. “We’ve begun discussing how that could be approached in our state, too. We’re finally talking about it as an option, at least.”
There may be no immediate moves to win back abortion rights, but just starting the conversation shows there may be a chance in the future. “It may not be right there on the horizon,” said Buhl. “But it’s definitely something we may be able to see at some point down the road.”