Posted on Jan 26, 2004 | by Michael Foust

PIERRE, S.D. (BP)--A bill that would ban most abortions and would define life as beginning at conception has been introduced in the South Dakota legislature, and it has a legitimate chance of passing.

State Rep. Matt McCaulley, a Republican, has introduced a bill that would define life as beginning when "the ovum is fertilized by the male sperm" and would ban all abortions except those needed to save the mother's life or save a woman who has a "serious risk of substantial and irreversible impairment of a major bodily function."

The bill was introduced on Jan. 22, the 31st anniversary of the Supreme Court's Roe v. Wade decision legalizing abortion.

"[Abortion] is certainly not an issue that should be resolved by the majority vote of nine people in a place 1,500 miles away from our state's capital," McCaulley told Baptist Press.

If all of the bill's sponsors vote for it -- assuming it gets out of committee -- it will pass. Thirty-eight of the 70 House members have signed on, as have 18 of the 35 Senate members.

Gov. Mike Rounds, a pro-life Republican, has not decided whether he would sign it, the Associated Press reported. But if it becomes law, a court challenge almost certainly would follow.

McCaulley, who is a member of a North American Baptist church in Sioux Falls, said he's trying to send a message nationally

"I'm hoping that pro-life legislators in other states will join with me in passing the same legislation," McCaulley told BP. "... I was four months old when Roe v. Wade was decided, and elected officials have never voted for this. This has been decided by the Supreme Court. It does not reflect the beliefs of the vast majority of Americans."

McCaulley's approach may be a first. The bill asserts that since "neither constitutional law nor Supreme Court decision" has resolved the question of the beginning of life, the South Dakota legislature has the right to answer the question "in light of the best scientific and medical evidence."

The bill then concludes that life begins at conception. South Dakota has a compelling state interest to protect life, the bill asserts, and the due process clause in the state constitution "applies equally to born and unborn human life." Although it describes it in detail, the bill does not contain the word "abortion."

"Our research and research from some other legal experts in the country has shown that indeed this is a new and novel approach to this issue," McCaulley said. "We're trying to frame the whole debate in terms of a [federal] Tenth Amendment argument, and that is that the federal constitution is silent on the issue of abortion, and under the Tenth Amendment this should be reserved to the states to decide and protect our citizens and unborn human life within our jurisdiction as we would see fit."

The bill's exceptions for abortion do not include the emotional and mental health of the mother, he said. It must be a substantial threat of a physical injury, he said.

"We still believe that's life, but we're not going to criminalize that if it comes down to a family choosing between having the mother be paralyzed in a coma for the rest of her life or having a baby," he said.

Politically, South Dakota is diverse. While the majority of the members of the state House and Senate are Republicans and its governor is a Republican, its two senators in Washington are Democrats: Tom Daschle, the minority leader, and Tim Johnson.

But the bill has bi-partisan support, McCaulley said. He added that South Dakota is a pro-life state.

"My fundamental belief is that under our system of democracy we regulate through legislation, not litigation," he said. "I refuse to take a moral issue and say that these important moral issues -- where the federal constitution is silent -- should be decided by judges and trial lawyers. In my opinion, it should be left up to the elected representatives of the people."

The bill is currently in a House committee, where 10 of the 13 committee members are sponsors, McCaulley said.
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The complete text of the bill can be read on the Internet at: http://legis.state.sd.us/sessions/2004/bills/HB1191p.htm.