Restrictions

On June 24, 2022, South Dakota began enforcing its trigger ban, which prohibits all abortions except to preserve the life of the pregnant person,^[1]S.D. Codified Laws § 22-17-5.1. following the U.S. Supreme Court’s decision to overturn Roe v Wade in the case Dobbs v. Jackson Women’s Health Organization.^[2]Dobbs v. Jackson Women’s Health Org., 597 U.S (June 24, 2022), rev’d Dobbs v. Jackson Women’s Health Org., 945 F.3d 265, 274 (5th Cir. 2019).

South Dakota has not repealed other laws related to abortion. South Dakota retains a gestational ban at twenty-two weeks LMP.^[3]S.D. CODIFIED LAWS § 34-23A-5. It prohibits D&X procedures^[4]Id. §§ 34-23A-27 to 34-23A-33. and abortions sought because of the sex of the pregnancy^[5]Id. § 34-23A-63 to 34-23A-64. or a fetal Down Syndrome diagnosis.^[6]Id. §§ 34-23A-89 to 34-23A-93. In 2022, South Dakota enacted a law limiting the availability of medication abortion to nine weeks and requiring people to return to the clinic within 72 hours; however this restriction is not in effect.^[7]H.B. 1318, 97th Leg., Reg. Sess. (SD 2022), to be codified at S.D. Codified Laws § 36-4. South Dakota law continues to include requirements that pregnant people must undergo a mandatory seventy-two-hour waiting period (excluding weekends and annual holidays), biased counseling,^[8]Id. § 34-23A-10.1; § 34-23A-56. and prohibitions on public funding for abortion.^[9]Id. § 28-6-4.5. It continues to require that a parent or legal guardian is notified forty-eight hours prior to a minor’s abortion;^[10]Id. §§ 34-23A-1(6), 34-23A-7. alternatively, a judge can approve a minor’s petition without parental notification.^[11]Id. § 34-23A-7.1

South Dakota retains targeted regulation of abortion providers (TRAP) laws related to facilities^[12]Id. § 34-23A-51; S.D. ADMIN. R. art. 44:67. and reporting.^[13]S.D. CODIFIED LAWS §§ 34-23A-34 to 34-23A-42.See also id. § 34-23A-19. South Dakota law continues to restrict the provision of abortion care to physicians and explicitly restricts certified nurse practitioners and certified nurse midwifes from the provision of abortion care,^[14]Id. §§ 34-23A-3, 36-9A-17.2. and still restricts providers from using telemedicine for the provision of abortion care.^[15]Id. § 34-23A-56; H.B. 1318, 97th Leg., Reg. Sess. (SD 2022). Providers who violate South Dakota’s abortion restrictions may face criminal and civil penalties.^[16]Id. § 22-17-6 3.

State Protections

South Dakota does not include express constitutional or statutory protections for abortion. In 2023, the state enacted a law creating an exception to the abortion ban as it applies to the pregnant person stating that a person who receives “an unlawful abortion,” will not be “held criminally liable.”^[17]H.B. 1220, 98^th Leg. Reg. Sess. (S.D. 2023) to be codified at S.D. Codified Laws § 22-17.

In 2024, South Dakota voters failed to approve an amendment to the state Constitution to prohibit government interference with the right to abortion during the first trimester and allowing for regulation in the second and third trimesters.^[18]Letter from Attorney General Mark A. Vargo to Secretery of State Steve Barnett (Aug. 22, 2022), available at … Continue reading

Post-Roe Prohibitions

In 2005, South Dakota enacted a trigger ban.^[19]Id. § 22-17-5.1.

Conclusion

Now that the Supreme court has overturned Roe, the state is enforcing its trigger ban which criminalizes abortion. In November 2024, voters failed to approve an amendment to the South Dakota Constitution to protect abortion rights.