This ballot measure would restore Roe. Abortion rights groups are attacking it.

On the same day the Supreme Court overturned Roe v. Wade in 2022, a law banning nearly all abortions in South Dakota took effect. This so-called trigger law was passed by South Dakota lawmakers in 2005 and immediately became one of the strictest bans in the nation, with no exceptions even for rape or incest.

Now a South Dakota ballot measure to “restore Roe v. Wade” is moving forward, despite opposition not just from Republican lawmakers and anti-abortion advocacy groups, but also from some local reproductive rights activists and national progressive organizations who say it doesn’t go far enough.

The pushback from certain corners of the political left illustrates ideological and strategic fissures within the abortion rights movement that have intensified since the fall of Roe, and leave ballot measure organizers in South Dakota to push ahead alone.

The proposed measure would amend South Dakota’s constitution to effectively codify the access available under the original Roe v. Wade decision. It would prevent the state from regulating abortion in the first trimester (weeks 1 to 13 of pregnancy); during the second trimester (14 to 26 weeks) the state could regulate it “only in ways that are reasonably related to the physical health of the pregnant woman.” Beyond that point, after a fetus is viable, South Dakota could regulate or prohibit abortion, except when a doctor deems the procedure necessary to preserve their patient’s “life and health.”

The vast majority of abortions in the United States occur during the first trimester. In 2020, 93 percent occurred before 13 weeks, according to the CDC, with an additional 6 percent occurring between 14 and 20 weeks.

Though South Dakota is a solidly conservative state, voters have rejected near-total abortion bans on ballot measures twice before — in 2006 and 2008 — and in the last decade, activists have won progressive voter referendums on other issues, including campaign finance, payday lending, medical and recreational cannabis, and most recently, Medicaid expansion.

To get on the November ballot, organizers will need to submit at least 35,017 valid petition signatures by May 7. Signatures are being collected by a grassroots group — Dakotans for Health — which also helped lead the ballot measure campaign for Medicaid expansion in 2022.

“We’re on track and feeling very bullish,” Adam Weiland, a leader with Dakotans for Health, told Vox. “We’ve got well over 50,000 signatures signed, sealed, and delivered, but we’re still collecting because we know they’re going to throw the kitchen sink at us.”

Courtesy of Dakotans for Health

Despite the optimism, advocates face hurdles from the left and right. In the Republican-dominated state legislature, more than 90 state senators voted for a resolution opposing the constitutional amendment, and last week House lawmakers voted to allow people to remove their signatures from the ballot-measure petition. (Dakotans for Health has threatened to sue over this.) The prime sponsor of the signature withdrawal bill has been insisting the proposed amendment is far more extreme than Roe v. Wade.

Meanwhile on the left, some abortion rights groups have started openly attacking the ballot measure and the organizers behind it. The ACLU of South Dakota, and Planned Parenthood North Central States — which represents Iowa, Minnesota, Nebraska, and South Dakota —have both raised issues with its drafting and its final language, saying they do not believe it will “adequately reinstate” the right to abortion.

Amy Kelley, an obstetrician-gynecologist in Sioux Falls, is supporting the ballot measure because she said practicing health care is untenable for physicians like her under the trigger ban, and she doesn’t want perfect to be the enemy of good.

“Of course it would be better to have a bill like the one that died in committee that said abortion is health care and should be left to women and doctors, but are we going to get to that in South Dakota before we have a maternal mortality crisis? Probably not,” Kelley told Vox. “The measure is not enough but does that mean that we don’t go in the right direction just because it’s not exactly what we want?”

Who is allowed to lead the defense of reproductive choice?

When the draft opinion of the Dobbs v. Jackson decision was leaked in May 2022, Cathy Piersol, a retired Sioux Falls attorney and a longtime advocate for women’s rights, called her friend Jan Nicolay, a former Republican lawmaker who led the campaigns against the 2006 and 2008 abortion ban ballot measures. They knew the trigger ban would take effect if Roe was officially overturned.

The women started convening meetings, including with representatives from Planned Parenthood and the ACLU. Piersol and Nicolay wanted to submit ballot language to codify abortion rights in South Dakota’s constitution, quickly, before South Dakotans elected a new secretary of state in November 2022. The favored candidate for secretary of state had repeatedly refused to affirm the legitimacy of Joe Biden’s election win in 2020 and was proudly touting an endorsement from South Dakota Right to Life.

But some activists felt things were moving too fast and that leaders should conduct more research and polling before advancing any specific ballot measure draft. Given the high likelihood that they’d face legal challenge, these advocates felt more due diligence was needed.

Others involved disagreed. They pointed to the prior ballot measure successes led by the South Dakota Campaign for Healthy Families, which Nicolay had directed.

“The idea that this was a rushed job is just silly; it’s simply not accurate,” Piersol told Vox. “We knew if we didn’t get a constitutional amendment quickly then the legislature would fiddle, diddle, and mess up the entire thing.” Piersol said she asked a Planned Parenthood regional vice president if there was a plan, “and he said, ‘Well, no, not right now,’ and I knew then we were on our own. It’s daunting but you cannot let yourself be dragged by the nay-sayers.”

Nicolay and Piersol approached Dakotans for Health with questions about executing a ballot measure campaign, and the group offered to organize the effort. Rick Weiland, founder of Dakotans for Health and a longtime political operative in the state, said he personally called the local ACLU and Planned Parenthood affiliates multiple times and was ignored. “[We’re] hoping that once we qualify for the ballot there will be a change of heart,” he told Vox.

About five months later, activists were approved to officially start collecting signatures, and for more than a year into the petition drive, local and national reproductive rights groups stayed relatively quiet. When I covered the pending ballot measure campaigns for abortion rights in summer 2023, Planned Parenthood North Central States had not issued any public statement and did not return my multiple requests for comment.

More recently, some activists started publicly attacking the campaign, most notably in a South Dakota Searchlight article published in early December. Samantha Chapman, advocacy manager for the ACLU of South Dakota, said in the story that her organization is not encouraging people to donate or volunteer, or encouraging people to vote yes or no. She claimed grassroots groups were not consulted and blasted the ballot measure for being initiated by “women who are not of reproductive age.” (Both Nicolay and Pierosol are in their 80s.) Chapman also slammed Dakotans for Health, which she described as “ultimately run by three white men.” (Chapman was formerly married to one of Weiland’s sons.)

Chapman told Vox the national ACLU and her local ACLU affiliate had no further comments for the media.

Nicolay, who is currently in hospice with late-stage pancreatic cancer, told Vox she was deeply offended by Chapman’s remarks. “Quite honestly I was appalled because the gal said, ‘Well, they’re two gray-haired women; they can’t reproduce so we shouldn’t be listening to them,’” she said. “No one has any idea what I went through when I was leading the ballot measures [in 2006 and 2008]. We fought a lot of battles so they could have their rights. We fought them before and we’ll fight them again.”

In the Searchlight article, Tim Stanley, of Planned Parenthood North Central States, said his organization stands with the ACLU in opposing the ballot measure. In an emailed statement to Vox, Stanley said they aren’t part of the coalition supporting the abortion rights amendment and weren’t involved in drafting it.

“As the sole abortion provider in South Dakota for more than 30 years, Planned Parenthood is acutely aware of the impact policy language can have on patients’ lives,” he said. “Meanwhile, Planned Parenthood North Central States is working to build a future where sexual and reproductive health care is accessible to all South Dakotans, especially people with lower incomes, those in rural areas, LGBTQ+ and other marginalized communities.”

Stanley declined multiple requests to clarify or elaborate on how Planned Parenthood is working to build that more accessible future for South Dakotans.

Courtesy of Dakotans for Health

Kim Floren, who cofounded the South Dakota Justice Empowerment Network, an abortion fund, said she doesn’t think the proposed measure goes far enough and raised concern with certain language, like that it uses the word “women,” which could exclude minors. Chapman pointed to Michigan as a better model for soliciting stakeholder input.

Michigan’s ballot measure, which voters approved in 2022, affirms the right to make decisions about “all matters relating to pregnancy, including but not limited to prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care.”

Piersol said trying to get the kind of “wonderful and rather elaborate language” that activists pushed for in Michigan is unrealistic. “You’re not going to get that passed in South Dakota,” she told Vox. “We know what people will vote for, and that’s the key.”

Is South Dakota’s measure likely to pass?

Ballot measures protecting abortion rights have won in all seven states in which they’ve appeared since the overturn of Roe, including in red states like Kentucky, Ohio, and Montana. Some of the victories were very expensive to win, with activists raising tens of millions of dollars for the efforts in Michigan and Ohio.

Organizers in South Dakota are preparing for the likelihood that they may see virtually no outside fundraising assistance, as national progressive funders like Open Society Foundations and the Fairness Project, and national abortion rights groups like Reproductive Freedom for All and Planned Parenthood, have already made clear they plan to stay out of the campaign. Funders recently told Politico they see South Dakota’s measure as having “shortcomings” and not “align[ed] with our values.”

Adam Weiland said an advantage is that South Dakota does not have a pricey media market, and so he believes they can still win without national donors, as they did with Medicaid expansion. “We’re a small state and we’ve already raised upwards of a million dollars,” he told Vox. “We think we’ll need 2, 3, or 4 million to win.”

In some respects, it might ultimately help that big progressive groups that heavily fund Democratic-aligned causes want to sit South Dakota out. One key way activists have been able to win over conservatives in other states is by ensuring their efforts remain aggressively nonpartisan.

Still, activists leading the abortion rights ballot measure campaign in South Dakota don’t see it that way.

“It is so deleterious to women to not have the force of Planned Parenthood and to not have the force of the ACLU behind a program that is specifically set up for women’s safety and health,” said Piersol. “It’s just outrageous that they have taken that position.”

Right now, organizers feel cautiously optimistic about the polling trends. A survey of 500 registered voters sponsored by South Dakota News Watch from July 2022 found 65 percent of respondents supported the idea of a statewide referendum on abortion rights, and more than 75 percent backed legalizing abortion in cases of rape or incest.

However, two more recent polls suggest it still may be a tough battle. In October a survey from the Hill and Emerson College found 45 percent of voters expressing support for South Dakota’s abortion ban, with 39 percent opposed and 16 percent unsure.

A News Watch survey conducted in November found mixed support for the proposed amendment, with 45.6 percent of respondents supporting it, and 43.6 percent opposing it. The poll’s margin of error was 4.5 percent.

Anti-abortion leaders have been cheering the public in-fighting, and SBA Pro-Life America, a national anti-abortion lobbying group, recently highlighted the Emerson College poll as what happens when “a state has a strong pro-life alliance and Planned Parenthood and the ACLU don’t throw millions into advertising.”

Adam Weiland said he’s not too worried about those autumn polls and pointed out that when South Dakotans first started organizing for the 2006 ballot measure to protect abortion rights, surveys showed they were down 14 points.

“Sure, South Dakotans have a more nuanced and moderate view of abortion rights than what some people might have in New York or California, but when you ask them whether or not women or young girls should be forced to carry to term, most people don’t think so,” he said. “Most people believe in the right to a choice.”