SIOUX FALLS, S.D. - Two years after South Dakotans rejected a nearly total ban on abortion, voters on Nov. 4 will decide another sweeping but less restrictive ballot measure that would probably send a legal challenge of Roe v. Wade to the U.S. Supreme Court.
The initiative would outlaw abortions but includes exceptions for rape, incest and pregnancies that threaten the life or health of the woman. Some voters said they wanted those exceptions when they rejected the tougher 2006 measure 56 percent to 44 percent.
Opponents say the new measure would jeopardize the patient-doctor relationship because physicians could be criminally charged for exceeding its bounds. They also argue that its exceptions are too narrowly defined and that it would force some women to carry an unhealthy fetus.
Leslee Unruh, the executive director of VoteYesForLife.com and the measure's main proponent, said it's legally sound.
Eleanor Smeal, president of the Feminist Majority Foundation, said the initiative could threaten legalized abortion in every state, especially if it goes before a 2011 or 2012 Supreme Court that would probably tilt to the right if Sen. John McCain becomes president.
McCain's Democratic rival, Barack Obama, supports the right-to-abortion principles of Roe v. Wade and would be less likely to appoint justices who would consider overturning it.
Colorado and California also have abortion-related measures on the Nov. 4 ballot, but "this is one of the worst bans," Smeal said of the South Dakota proposal.
"This ban, which was defeated pretty solidly last time, is essentially the same ban this time but the language is more defective. We take it very seriously and so we're hoping that it will be defeated," Smeal said.
Unruh said that the measure might provoke a legal challenge but that her focus is on preventing abortions in South Dakota.
"We'd be the first abortion-free state," she said.
South Dakota Campaign for Healthy Families, the main group urging the measure's defeat, has focused on statements from several doctors and health care groups expressing concerns about the legal ramifications.
In September, the South Dakota State Medical Association came out against the measure "solely based on interference by the government in medical practice and restrictions on physician-patient communications."
President Dr. Cynthia Weaver said the group didn't take a side on abortion, just the ballot issue.
"Anything that interferes with our ability to talk to our patients and take care of them and where they have to do criminal investigations makes it difficult to have a good patient-doctor relationship," she said.
South Dakota doctors who support the measure vehemently disagree, Unruh said. The issue has the support of more than 40 state and national organizations, supporters say.
"There's probably 220 doctors that are pro-life doctors and they're furious. They're saying, 'I wasn't polled and I'm a member,'" she said.
"What happened to 'doctor do no harm?' These are South Dakota's little citizens."
Some of the concerns outlined by opponents were echoed in an internal memo from lawyers for Sanford Health, a Sioux Falls-based health care system, to its executives. The memo was obtained by Jan Nicolay, co-chair of the South Dakota Campaign for Healthy Families.
If the measure becomes law, some procedures would no longer be allowed at the health system, such as termination of pregnancies in which the fetus is likely to die, the memo says. Also, vague language about the mother's health would create the risk of criminal penalties, it states.
Kelby Krabbenhoft, president and CEO of Sanford Health, told reporters the memo does not take a side on the measure, just clarifies its potential impact.
Nicolay said the document "substantiates" her group's concern about the doctor-patient relationship because of the potential penalty of up to 10 years in prison and a $20,000 fine for violating the ban.
"And it makes it very clear that there are times you have to do things on behalf of the patient, and they're going to have to call their lawyer before they can do it," she said.
Not true, said Dr. Patti Giebink, an obstetrician-gynecologist who performed abortions at Planned Parenthood in Sioux Falls in the mid-1990s and now is chairman of VoteYesForLife.com.
Giebink said the measure's language "has been tweaked and buffed and changed and checked out." Doctors abiding by standard medical practices would have nothing to fear, she said.
Giebink acknowledged the measure would not allow abortions if the fetus is found to have a likely fatal condition - something the drafters debated at length.
"There's some doctors that are going to struggle with this. But we said, 'OK, let's err on the side of life. Let's err on the side of what we think is the best solution, what we see in our experience,'" Giebink said.
She said she has spoken with women who gave birth to a baby who lived only a short time but brought the family enormous joy. Other mothers, she said, had children diagnosed with an ailment in the womb who grew up to be normal, healthy adults.
It still should be the decision of the parents, opponents argue.
According to the state Health Department, 748 abortions were performed in 2006, the last year for which records are available.
Of the reasons cited, three were the result of rape or incest, 11 were because "the mother would suffer substantial and irreversible impairment of a major bodily function if the pregnancy continued," and 16 because "the mother's emotional health was at risk," according to the statistics.
Not all South Dakotans who oppose abortion support the measure. South Dakota Right To Life is urging voters to reject it because of the exceptions not included in the 2006 measure, which the group supported.
"They're moving toward the middle, but they're alienating more of the hard-core pro-lifers who believe that everybody has that right to life," said Kyle Holt, the group's director of operations.
"Our position has always been that everyone has a right to life from natural conception to death."
Opponents had raised $113,000 - more than twice as much money as supporters - in the months leading up to July, when the last campaign finance reports were filed, and most of the money came from outside South Dakota.
Unruh said her side's campaign is focusing on a grassroots effort that includes volunteers from both major political parties and different religious denominations.
"Grassroots trumps money any day of the week. David and Goliath," she said.
People of all ages and backgrounds have volunteered, she said, citing an elderly woman on oxygen who stopped by the campaign headquarters to pick up yard signs.
"She put her finger in my face and said, 'Young lady, if I died out on somebody's sidewalk, I died a happy woman doing something important,'" she said.