South Dakota's Genius Scheme to Outlaw Abortion

The trick? Privately fund a public initiative overturning the 1973 Roe v. Wade decision

WASHINGTON, D.C.—The state government of South Dakota is poised to engage in a most bizarre battle to overturn Roe v. Wade.

The state legislature earlier this week passed a bill flat out banning abortion even in cases of rape and incest. The governor, Michael Rounds, while nominally neutral, is thought to be ready to sign it. Then, the legislation will be challenged in court. And it is here that the real political battle begins.

A campaign to push the legislation through the U.S. court system up to the Supreme Court where South Dakotans can lead the charge to overturn Roe v. Wade, will cost over $1 million. South Dakota doesn't have that kind of money. So Rounds is studying ways of accepting into the state treasury private funds with which to wage the battle in the name of the South Dakota citizenry. In short,the well-heeled opponents of abortion are going to hire the public state government to fight their battle.

But while South Dakotan legislators have portrayed their state's political attitude as singularly pro-life, many argue the citizenry, if given a chance to approve or disapprove the bill, would come out against a ban. Thelma Underburg, the Executive Director NARAL Pro-Choice South Dakota, argues that defeat of a recent bill in the state legislature calling for a referendum, in fact, shows that "despite the right to life people saying it is a pro-life state, they know . . . if it ever came to a vote of the people, the majority think that a safe and legal abortion is a right."

The concern about how South Dakota's voters really feel about the effort to outlaw abortion is reflected in Governor Rounds's publicly affirmed reservation about the legal costs that the state will rack up defending this bill in the federal courts against the enjoinment that Planned Parenthood of Minnesota, North Dakota, and South Dakota reportedly plans to seek. Never fear, say pro-life groups, an anonymous donor or donors are waiting in the wings to pony up $1 million for the abortion ban's legal fees.

When asked if the state will accept such legal gratuity, the Governor's Press Secretary Mark Johnston answered, "There certainly has been discussion about that cost, and there does need to be provisions for receiving that money into the treasury," and the Sioux Falls Argus-Leader reported on Friday that a bill was being passed to set up such a special pro-life war chest in the state's treasury. But when probed more specifically about the anonymous donation, Johnston checked himself, answering "I can't think of whether [the Governor] has said that publicly, so I can't answer that."

It's not entirely clear why an abortion foe would desire so strongly to keep their bankroll on the down low. One suggested head of steam behind the war chest was identified as Steve Kirby, the Founding Partner of the Sioux Falls-based investment firm Bluestem Capital, with a market value of $200 million. Kirby is a familiar player in South Dakota, serving as Lieutenant Governor from 1993 to 1995, and an unsuccessful candidate for governor in 2002.

When interviewed by the Voice about the abortion ban, Kirby said, "There's been apparently some degree of support for private funding out of a passion of the supporters for seeing that the bill remains the law of the land, and maybe funding a lawsuit." But when asked if he was a donor, Kirby responded, "No comment on that one."

Setting up such an unusual campaign warchest may give the appearance of impropriety. "If the legislative body thinks this is the right thing to challenge the Constitution of the U.S., they need to be willing to pay for the process," argued Kate Looby, the South Dakota State Director for Planned Parenthood. By expecting outside donors to finance the legal challenge, she added, "There's some element of buying government, and I really object to that."

"Clearly the state can use taxpayer dollars," Sarah Stoesz of Planned Parenthood said. "I wouldn't be surprised if they could devise a scheme to use these donated funds. What it does underscore, there is a belief that the taxpayers don't want to pay for this, and consequently the only way to get something done that the taxpayers don't want to pay for and that the politicians don't want to pay for, the only way to do this is to find a private, anonymous person who will effectively purchase public policy that is not taxpayer or voter supported."

 
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