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May 2004

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The Death of HB 1191

By Eleanor j. Bader
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T o the surprise of just about everyone, HB 1191, a South Dakota bill challenging the Supreme Court ruling in Roe v. Wade , died in mid-March. Drafted by the Thomas More Law Center—an Ann Arbor “public interest” legal firm that serves as a conservative Christian antidote to the ACLU, Planned Parenthood Federation, and National Education Association—anti-abortionists believed the bill would force the Court to undo its 1973 ruling. 

Although the More Center and its supporters are still smarting from their unexpected defeat, they vow that next year, they will reintroduce the bill and others like it into statehouses across the country. 

The More Center gets the lion’s share of its funding from Domino’s pizza founder and Catholic traditionalist, Tom Monaghan, who Forbes Magazine estimates is worth $485 billion. Monaghan’s deep pockets and political fervor mean that the Center will likely spare no expense in pursuing its goal. Furthermore, it can be counted on to push for the most ideologically rigid anti-abortion bill that can pass legal muster. 

Indeed, HB 1191 made the agenda clear. It declares that human life begins “when the ovum is fertilized by male sperm.” It also determines that states have a “compelling and paramount interest in the preservation and protection of all human life,” and guarantees due process of law to both “born and unborn human beings.” Thomas More Center lawyers call it “model legislation.” 

The battle in South Dakota began in January and ended March 15, when lawmakers defeated HB 1191 by one vote. Until the final moment, legislation-watchers believed the bill would be enacted. They based this hunch on hearings, orchestrated by the antis, which relied on an outpouring of emotion intended to sway elected officials. Over the course of several days, women claiming to have been injured by abortion testified about the surgery’s allegedly deleterious impact. One after another, they laid suicide, severe depression, post- traumatic stress disorder, infertility, and other maladies on the doorstep of the state’s two abortion providers. Their rallying cry was loud and unambiguous: abortion hurts those who have them, as well as those near and dear to them. Concerned Women for America (CWA) also got in on the action, exhibiting sonogram footage of fetal life. Their efforts were complimented by a host of conservative activists, attorneys, and doctors. Bigwigs, including Notre Dame Professor Gerard V. Bradley, chair of the Federalist Society’s Religious Liberties Practice Group, and Dr. David Fuuchi Mark, a psychiatrist whose testimony lends cred- ibility to claims of Post Abortion Syndrome, used their voices to champion the cause. 

Thelma Underberg, executive director of the state’s NARAL chapter, was shocked by the callousness of the rhetoric and the frenzy that accompanied the bill’s introduction. “One woman who got up to speak said that she understood that rape was traumatic, but that she could not help but think it would be therapeutic for the woman to give birth to new life,” she reports. After debating this issue, Underberg says that lawmakers voted against including a rape or incest exception. They also voted down a provision to allow abortion in cases of fetal deformity. Legislators did, however, toss a sop at ambivalent, would-be allies, and agreed to allow abortion in cases of life or health endan- germent. 

But even this concession was not easily won. “Rome only fell after it began allowing abortions and infanticide,” Rep. Bill Von Gerpen, a Tyndall Republican, thundered before the first vote on the bill. His colleagues—all 105 of whom are up for reelection in November—applauded him and practically tripped over one another to “protect the unborn.” 

So why did the bill falter? According to NARAL’s Underberg, the floundering began during a technically mandated second vote, which took place several weeks after HB 1191 was initially approved. “There was a massive lobbying effort by pro-choice people after the first vote,” she says. “I think legislators who voted anti-choice the first time felt the heat and realized that their position was not as popular as they thought it was.” 

In addition, some lawmakers found themselves questioning the likelihood of winning the legal battle that would follow bill passage. According to Brian Burch, director of development and communications at the Thomas More Center, “The sentiment to overturn Roe was there. The debate over HB 1191 was not around whether abortion should be legal. Legislators in South Dakota agree that we need to end abortion. The argument was over the most effective way to do this.” 

Burch blames the bill’s defeat on divisions within the anti-abortion community. “Some people questioned whether this direct assault on Roe was being waged at the right time,” he says. “They felt that we need to see changes in the composition of the Supreme Court before something like this can be tried. They felt that it would be better to wait a year or two, until there are new prolife appointees on the Court, and instead fight for incremental changes, things that have been proven to reduce the number of abortions, like parental consent and notification laws, mandatory waiting periods, and counseling about the risks associated with abortion.” 

While Burch admits that he is disappointed that HB 1191 failed to pass, he sounds anything but dejected. In fact, he is enthusiastic about what he believes to be a political inevitability: the overturning of Roe . “There is a lot of new evidence about fetal life and the harm abortion causes that the Supreme Court will not be able to ignore,” he says. “The Court will eventually say that it is proper for states, not the federal government, to regulate it. Some states will regulate aboriton moderately and others will regulate it extensively. But the bottom line is that the Court will agree that individual states have the authority to protect fetal life.” 

If Burch is correct, and the Court agrees to rethink the issue, rights long believed to be sacrosanct will be up for grabs. NARAL, Planned Parenthood, and the Religious Coalition for Reproductive Choice have been warning about this possibility for 30 years. Let’s hope that people have not become so desensitized by their exhortations that they ignore the alarms that are loudly sounding.  

Eleanor J. Bader, a freelance writer and teacher, is the co-author of Targets of Hatred: Anti-Abortion Terrorism . 
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