SD Secretary of State Elections & Voter Registration Upcoming Elections 2008 South Dakota Ballot Question Attorney General Explanations

2008 Ballot Questions

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Constitutional Amendment G

Title:  An Amendment to the South Dakota Constitution, to repeal certain reimbursement restrictions for travel by legislators to and from a legislative session. 

Attorney General Explanation: 

            The Constitution fixes the mileage reimbursement rate for legislators at five cents per mile for their travel to and from a legislative session. 

            Constitutional Amendment G would repeal this constitutional limitation.

            A vote �Yes� will change the Constitution.

            A vote �No� will leave the Constitution as it is.

Full Text of Constitutional Amendment G:     

     Section 2.  That Article III, section 6 of the Constitution of the State of South Dakota, be amended to read as follows:

     � 6.   The terms of office of the members of the Legislature shall be two years; they shall receive for their services the salary fixed by law under the provisions of � 2 of article XXI of this Constitution , and five cents for every mile of necessary travel in going to and returning from the place of meeting of the Legislature on the most usual route .

     No person may serve more than four consecutive terms or a total of eight consecutive years in the senate and more than four consecutive terms or a total of eight consecutive years in the house of representatives. However, this restriction does not apply to partial terms to which a legislator may be appointed or to legislative service before January 1, 1993 .
     A regular session of the Legislature shall be held in each odd-numbered year and shall not exceed forty legislative days, excluding Sundays, holidays and legislative recess, except in cases of impeachment, and members of the Legislature shall receive no other pay or perquisites except salary and mileage.
     A regular session of the Legislature shall be held in each even-numbered year beginning with the year 1964 and shall not exceed thirty-five legislative days, excluding Sundays, holidays and legislative recess, except in cases of impeachment, and members of the Legislature shall receive no other pay or perquisites except salary and mileage.

Constitutional Amendment H

Title:  An Amendment to the South Dakota Constitution, to repeal certain provisions relating to corporations.

Attorney General Explanation: 

            The Constitution limits �corporations� to business entities with powers or privileges not possessed by individuals or partnerships.  The Constitution also requires the payment of money, property or labor for issuance of corporate stock and bonds; prohibits the increase of corporate stock and debt without consent of stockholders holding a larger value of stock first obtained; and protects cumulative voting rights of stockholders. 

            Constitutional Amendment H would repeal the above provisions and permit a 2008 Legislative Session bill (HB 1139) to become law.  The new law would allow a corporation to restrict cumulative voting and to issue corporate stock for any consideration determined to be adequate by its board of directors.

            A vote �Yes� will change the Constitution.

            A vote �No� will leave the Constitution as it is.

Full Text of Constitutional Amendment H:     

  Section 2.  That Article XVII, section 5 of the Constitution of the State of South Dakota, be repealed.

     � 5.   In all elections for directors or managers of a corporation, each member or shareholder may cast the whole number of his votes for one candidate, or distribute them upon two or more candidates, as he may prefer.

     Section 3.  That Article XVII, section 8 of the Constitution of the State of South Dakota, be repealed.

    � 8.   No corporation shall issue stocks or bonds except for money, labor done, or money or property actually received; and all fictitious increase of stock or indebtedness shall be void. The stock and indebtedness of corporations shall not be increased except in pursuance of general law, nor without the consent of the persons holding the larger amount in value of the stock first obtained, at a meeting to be held after sixty days notice given in pursuance of law.

     Section 4.  That Article XVII, section 19 of the Constitution of the State of South Dakota, be repealed.

     � 19.   The term "corporations," as used in this article, shall be construed to include all joint stock companies or associations having any of the powers or privileges of corporations not possessed by individuals or partnerships.

   

Constitutional Amendment I 

Title:  An Amendment to the South Dakota Constitution, to provide for a maximum of forty legislative days each year.

Attorney General Explanation: 

            The Constitution limits the length of regular legislative sessions held during odd-numbered years to no more than forty legislative days, and those held during even-numbered years to no more than thirty-five legislative days.

            Constitutional Amendment I would set all regular legislative sessions at a maximum of forty legislative days.

            A vote �Yes� will change the Constitution.

            A vote �No� will leave the Constitution as it is.

Full Text of Constitutional Amendment I:     

Section 2.  That Article III, section 6 of the Constitution of the State of South Dakota, be amended to read as follows:

     � 6.   The terms of office of the members of the Legislature shall be two years; they shall receive for their services the salary fixed by law under the provisions of � 2 of article XXI of this Constitution, and five cents for every mile of necessary travel in going to and returning from the place of meeting of the Legislature on the most usual route.

     No person may serve more than four consecutive terms or a total of eight consecutive years in the senate and more than four consecutive terms or a total of eight consecutive years in the house of representatives. However, this restriction does not apply to partial terms to which a legislator may be appointed or to legislative service before January 1, 1993 .
     A regular session of the Legislature shall be held in each odd-numbered year and shall not exceed forty legislative days, excluding Sundays, holidays and legislative recess, except in cases of impeachment, and members of the Legislature shall receive no other pay or perquisites except salary and mileage.
     A regular session of the Legislature shall be held in each even-numbered year beginning with the year 1964 and shall not exceed thirty-five legislative days, excluding Sundays, holidays and legislative recess, except in cases of impeachment, and members of the Legislature shall receive no other pay or perquisites except salary and mileage

Constitutional Amendment J 

Title:  An Amendment to the South Dakota Constitution, to eliminate term limits for legislators. 

Attorney General Explanation:  

            The Constitution establishes term limits for legislators.  No legislator may serve in the state house of representatives or the state senate for more than four consecutive terms, or a total of eight consecutive years. 

            Constitutional Amendment J would repeal legislator term limits. 

            A vote �Yes� will change the Constitution.

            A vote �No� will leave the Constitution as it is. 

Full Text of Constitutional Amendment J:     

Section 2.  That Article III, section 6 of the Constitution of the State of South Dakota, be amended to read as follows:

     � 6.   The terms of office of the members of the Legislature shall be two years; they shall receive for their services the salary fixed by law under the provisions of � 2 of article XXI of this Constitution, and five cents for every mile of necessary travel in going to and returning from the place of meeting of the Legislature on the most usual route.
     No person may serve more than four consecutive terms or a total of eight consecutive years

in the senate and more than four consecutive terms or a total of eight consecutive years in the house of representatives. However, this restriction does not apply to partial terms to which a legislator may be appointed or to legislative service before January 1, 1993.

     A regular session of the Legislature shall be held in each odd-numbered year and shall not exceed forty legislative days, excluding Sundays, holidays and legislative recess, except in cases of impeachment, and members of the Legislature shall receive no other pay or perquisites except salary and mileage.
     A regular session of the Legislature shall be held in each even-numbered year beginning with the year 1964 and shall not exceed thirty-five legislative days, excluding Sundays, holidays and legislative recess, except in cases of impeachment, and members of the Legislature shall receive no other pay or perquisites except salary and mileage.

Initiated Measure 9 

Title:  An Initiative to make certain securities practices and transactions unlawful. 

Attorney General Explanation:  

State and federal law regulates the purchase and sale of stocks and other securities. 

A common �stock market� transaction is a �short sale� where, for example, an investor who believes a publicly traded stock is over-priced will borrow that stock from an owner, sell the borrowed stock, and repurchase the stock later at a lower price to repay the loan, thereby making money if the price has fallen.  If the price goes up, the investor must repurchase the stock at the higher price to repay the loan, and will lose money.  Measure 9 would prohibit short sales.  

State law currently does not regulate the time frame for the delivery of securities upon sale.  Measure 9 would prohibit anyone from routinely taking longer than three business days to deliver securities they have sold.  

            If adopted, Measure 9 will likely be challenged in court and may be declared to be preempted by federal law and the United States Constitution.   

A vote �Yes� will adopt the proposed law.

A vote �No� will reject the proposed law. 

Full Text of Initiated Measure 9:     

Section 1.  That subsection 47-31B-412(c) be amended to read as follows: 

    (c) Disciplinary penalties--registrants. If the director finds that the order is in the public interest and subsection (d)(1) through (6), (8), (9), (10), or (12), or (15) and (13) authorizes the action, an order under this chapter may censure, impose a bar, or impose a civil penalty in an amount not to exceed a maximum of ten thousand dollars per violation, on a registrant, and, if the registrant is a broker-dealer or investment adviser, a partner, officer, director, or person having a similar status or performing similar functions, or a person directly or indirectly in control, of the broker-dealer or investment adviser. 

Section 2.  That subsection 47-31B-412(d) be amended by adding thereto a NEW SUBDIVISION to read as follows:

(15)            Has engaged in a pattern of commercially unreasonable delay in the delivery of securities sold, or has sold securities that the person did not own or have a bona fide contract to purchase.  For the purposes of this subdivision, commercially unreasonable is presumed to be more than three business days.

Section 3.  That 47-31B-501 be amended by adding thereto a NEW SUBDIVISION to read as follows:

(4)                 To engage in a pattern of commercially unreasonable delay in the delivery of securities sold, or to sell securities that the person does not own or does not have a bona fide contract to purchase.  For the purpose of this subdivision, commercially unreasonable delay is presumed to be more than three business days.

Initiated Measure 10 

Title:  An Initiative to prohibit tax revenues from being used for lobbying or campaigning, to prohibit governmental bodies from lobbying, to prohibit government contractors from making campaign contributions, to prohibit government contracts when the contractor employs a legislator or legislative staff member, and to require contracts with governmental bodies to be published. 

Attorney General Explanation: 

            State law prohibits the acceptance of campaign contributions from all government and tribal entities, expenditure of public funds to support or oppose ballot measures, and certain state and county contracts which financially benefit legislators. 

Measure 10 would prohibit state and local governments, their officers, employees, independent contractors, consultants and candidates, from using government revenues or resources for campaigning or lobbying.  Some communications and appearances before legislators and public bodies are exempted. 

It would prohibit persons who employ legislators or recent legislators from obtaining government contracts.  It would prohibit, until two years after contract termination: some public officers, candidates and their agents from soliciting, accepting or directing contributions from some holders of competitively bid government contracts and their family members; and no-bid government contract holders, their officers, employees, agents, vendors and family members from making contributions to, or independent expenditures for, all candidate campaigns.   

The Secretary of State would be required to summarize government contracts over $500 on its website. 

If approved, all or part of Measure 10 will likely be challenged in court and may be declared to be in violation of the United States Constitution.  If so, the State may be required to pay attorney fees and costs. 

            A vote �Yes� will adopt the proposed law.

            A vote �No� will reject the proposed law.

Full Text of Initiated Measure 10:     

Section 1. That �12-27-21 be amended to read as follows: 

No public body, public officer, person in the employ of the state or any of its political subdivisions, or candidate for public office may, directly or indirectly, direct, permit, receive, require, or facilitate the use of tax revenues or any other public resources for campaign, lobbying, or partisan purposes, including payment of dues or membership fees of any kind to any person, league, or association which, directly or indirectly, engages in lobbying, campaigns, or partisan activity. No candidate, political committee, or political party may accept any contribution from any state, state agency, political subdivision of the state, foreign government, Indian tribe, federal agency, or the federal government. A violation of this section is a Class 1 misdemeanor.

Section 2. Any person who knowingly spends or receives funds in violation of �12-27-21 shall pay full restitution for the greater of the public cost or for the market value of any misappropriated resources. A knowing violation of �12-27-21 is grounds for discharge of an employee. A knowing violation of �12-27-21 is deemed corrupt misconduct. 

Section 3. The provisions of �12-27-21 do not limit public officials in the performance of their constitutional duties, and do not apply to:  

(1) Communications among and between a member and a staff member of a legislative body, or between an elected or appointed public officer and a legislator or a legislative staff member;  

(2) Comments by an elected official or communications from an elected official that are designated for constituents; 

(3) Appearances and communications by a public officer or employee, pursuant to a request to appear before a public body to provide information; 

(4) A public employee acting in an uncompensated personal capacity, undirected in any manner by, and who does not purport to represent the interests of, a public employer; and

(5) An authorized employee of the office of the Supreme Court, Governor, lieutenant governor, attorney general, secretary of state, auditor, treasurer, and commissioner of school and public lands, and other principal departments of the executive department of government having responsibility to assess the impact of proposals which affect the administration of government. 

Section 4. Terms as used in �12-27-21 mean: 

(1) �Direct, permit, receive, require, or facilitate the use of tax revenues or any other public resources for campaign, lobbying, or partisan purposes,� includes 

(a) The use of public funds, facilities, rights of access, equipment, supplies, or trademarks to influence any election; 

(b) Undertaking, promoting, or distributing studies, surveys, analyses, descriptions, or other communications using public resources in a manner specifically calculated to induce support of, or opposition to, proposed legislation or ballot questions; and 

(c) Incurring any public administrative expenses or activities to allocate or designate portions of public employee income to entities that engage in lobbying or partisan activities, other than charitable organizations qualified as exempt from federal income tax under section 501(c)3 of the Internal Revenue Code, or the corresponding section of any future federal tax code; 

(2) �Campaign,� includes 

(a) Communications or expenditures related to the pursuit of an elected or appointed public office; 

(b) All lobbying; and 

(c) Efforts paid in whole or in part by public revenues or resources to coordinate or induce members of the general public or any segment thereof to directly influence legislative activity by communicating with members of any legislative body supporting or opposing legislation within this state, or supporting or opposing a petition drive or ballot question;  

(3) �Lobbying,� includes attempts to directly influence legislative activity by communication with any member or employee of any legislative body or with any government official or employee who may participate in the formulation of legislation of this state; 

(4) �Person,� includes any natural person, business entity, organization, committee, political party, campaign fund, and association; 

(5) �Public officer� and �person in the employ of the state or any of its political subdivisions,� include any person who is elected, appointed, or employed by this state or any political subdivision of this state, including any person who is an independent contractor or consultant hired by the state or a political subdivision of this state; and 

(6) �Tax revenues or other public resources," includes all state and local government revenues and resources, and does not include any revenues paid or resources provided by the United States government. 

Section 5.  No person may enter into a government contract if the person also employs, hires, or retains the services of a current or former legislator or legislative staff member who is less than one year removed from such public position. A person who knowingly violates this prohibition is guilty of a misdemeanor and shall, in addition to other penalties, forfeit any contractual rights to any payment or reimbursement, and shall make restitution to the state in the amount of funds accrued during the period of violation. This section shall not apply to a bona fide position, trade, occupation, or profession in which a person engaged or obtained certification within one year prior to becoming a legislator or legislative staff member. 

Section 6. Beginning on the date a government contract is awarded and extending until two years following the conclusion of that contract, no holder of the public office with ultimate responsibility for the award of the contract, no candidate for that office, and no person acting on behalf of either, may knowingly solicit, accept, or direct a contribution from the holder of the government contract or an immediate family member of the holder. No candidate or other person may knowingly accept or make a contribution that is solicited or directed in violation of this section. A person who knowingly violates this prohibition is guilty of a misdemeanor and shall, in addition to other penalties, make full restitution to the donor. A knowing violation of this section is deemed corrupt misconduct. 

Section 7.  Any person entering into a no-bid government contract awarded by the state or any of its subdivisions shall be considered a holder of the government contract and shall contractually agree to cease making, inducing, or soliciting any contribution or independent expenditure, directly or indirectly, through any officer, employee, immediate family member of any officer or employee, vendor, or agent, to or for the benefit of any candidate for any elected office of the state or any of its political subdivisions, or to any person who intends to make such a contribution within the state or any of its political subdivisions, for the duration of the contract and two years thereafter. The contractual agreement shall provide that any violation of this provision by the holder of the government contract shall, in addition to other legal consequences, result in forfeiture of any contractual rights to payment under the contract, and in payment of restitution to the state in an amount of not less than twice the amount of the contribution. Any person who knowingly violates this provision, or accepts contributions on behalf of a candidate or other entity in violation of this provision, shall pay restitution to the state in an amount not less than twice the amount of the contribution. If the treasurer of any entity subject to such agreement obtains knowledge of a contribution made or accepted in violation thereof by that entity, then liability for the violation shall be also attributable to the treasurer unless the treasurer notifies the secretary of state about the violation in writing within three business days of learning of such contribution. A knowing violation of this section is deemed corrupt misconduct. If a person has previously been determined to be responsible for violating this section, the person shall be ineligible to hold any government contract, or public employment with the state or any of its political subdivisions, for three years. The Governor may temporarily suspend any debarment under this section during a declared state of emergency.

Section 8. In addition to other actions, penalties and remedies provided by state law, a violation of section 7 of this Act may be established and enforced by the filing of a verified complaint in the circuit court. The court may appoint a referee to take testimony and make findings and recommendations. The complaint may be filed in the name of the state by the attorney general. The complaint may also be filed by a private citizen, or non-governmental group or entity, only if the complaining party has first presented to the attorney general a request to file a complaint, along with a sworn affidavit setting forth supporting facts, and the attorney general has failed to file a complaint within fifteen days from receipt of the request. If a complaint is filed in the circuit court by a private citizen, or a non-governmental group or entity, then the attorney general may intervene and prosecute the complaint. The following provisions shall control a complaint to establish a violation of and to enforce section 7 of this Act:

 

(1) Within twenty-one days from the filing of a verified complaint, the court shall, sua sponte, make a determination based on the verified complaint whether there is probable cause that a violation has occurred;

 

(2) If the court determines that there is not probable cause that a violation has occurred then the complaint shall be dismissed without further proceedings; and

 

(3) In the event the complaint is dismissed for lack of probable cause then the court may award costs and attorney fees against the complaining party, other than the state. 

Section 9. The secretary of state shall promptly publish a summary of each government contract on a searchable website accessible from a conspicuous place on its official public website, for a period of at least ten years. Any holder of a government contract shall promptly prepare and deliver to the secretary of state a true and correct "Government Contract Summary," in digital format as prescribed by that office, which shall identify the names and addresses of the holders and all other parties to the government contract, briefly describe the nature of the contract and goods or services performed, disclose whether it is or is not a no-bid government contract, disclose the estimated duration and end date of the contract, and disclose the contract's estimated amount, and apportioned sources of payment. The summary shall also disclose any other relevant contract information as determined by the secretary of state, to the extent disclosure would not violate federal law, trade secrets, or intellectual property rights.  

Section 10. Terms as used in sections 5 to 9 of this Act, inclusive, mean: 

(1) �Contribution,� includes money, monetary donations, loans, and any in-kind donations, but does not apply to volunteer activities by individuals that do not otherwise qualify as an in-kind donation; 

(2) �Government contract,� includes any contract awarded by an agency or department of this state or any public body receiving state subsidy or authorized to levy taxes, for the purchase of goods or services for amounts greater than five hundred dollars, indexed for inflation per the Consumer Price Index after the year 2010. A contract for services includes collective bargaining agreements with a labor organization representing employees but not employment contracts with individual employees; 

(3) �Holder of the government contract,� includes any party to the contract, including partners, owners of five percent or more interest, officers, administrators or trustees of any person who is a party to the contract, or, in the case of collective bargaining agreements, the labor organization and any political committees created or controlled by the labor organization; 

(4) �Holder of the public office with ultimate responsibility for the award of the contract,� includes any elected official who may award the contract or appoint an official responsible for awarding the contract, or any elected official of a public body where the contract is awarded by that public body; 

(5) �Immediate family member,� includes any spouse, child, spouse�s child, son-in-law, daughter-in-law, parent, sibling, grandparent, grandchild, stepbrother, stepsister, stepparent, parent-in-law, brother-in-law, sister-in-law, aunt, uncle, niece, nephew, guardian, and domestic partner; 

(6) �No-bid government contract,� includes all government contracts that do not use open, blind competitive bidding processes for procurement. Collective bargaining agreements qualify as no-bid government contracts if the contract confers an exclusive representative status to bind all employees to accept the terms and conditions of the contract; and 

(7) �Person,� includes any natural person, business entity, organization, committee, political party, campaign fund, and association.

Initiated Measure 11 

Title:  An Initiative to prohibit abortions except in cases where the mother�s life or health is at a substantial and irreversible risk, and in cases of reported rape and incest. 

Attorney General Explanation:  

            Currently a woman may obtain an abortion during the first 24 weeks of pregnancy.  Beyond 24 weeks, abortions may be performed only if necessary to preserve the life or health of the woman. 

            Measure 11 would prohibit all abortions performed by medical procedures or substances administered to terminate a pregnancy, except for:  abortions medically necessary to prevent death or the serious risk of substantial and irreversible impairment of a major bodily organ or system of the woman;  and abortions to terminate a pregnancy of less than 20 weeks resulting from rape or incest reported to law enforcement. 

            When an abortion is performed as a result of reported rape or incest, the woman must consent to biological sampling from herself and the embryo or fetus for DNA testing by law enforcement. 

            Measure 11 would allow the provision of contraception substances prior to the time pregnancy can be determined by conventional medical testing, or assistance in obtaining abortions in states where the procedure is legal. 

            If approved, Measure 11 will likely be challenged in court and may be declared to be in violation of the United States Constitution.  The State may be required to pay attorneys fees and costs. 

            A vote �Yes� will adopt the proposed law.

            A vote �No� will reject the proposed law.

Full Text of Initiated Measure 11:     

Section 1. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

The people of the State of South Dakota find:

(1) That all induced abortions, whether surgically or chemically induced, terminate the life of an entire, unique, living human being, a human being separate from his or her mother, as a matter of scientific and biological fact;

(2) That the State of South Dakota possesses a duty to protect the life of all human beings within the state, and it is a legitimate exercise of the state�s power to protect the life of all human beings within the state, including those human beings living in utero;

(3) That submitting to an abortion subjects the pregnant woman to significant psychological and physical health risks, and that in the majority of cases there is neither the typical physician-patient relationship nor sufficient counseling between a pregnant woman contemplating submitting to an abortion and the physician who performs the abortion;

(4) That a pregnant woman possesses certain intrinsic rights which enjoy affirmative protection under the Constitution of the United States, and under the Constitution and laws of the State of South Dakota, and that among these rights are the fundamental right of the pregnant woman to her relationship with her child, and her fundamental right to make decisions that advance the well-being and welfare of her child;

(5) The state has a right and duty to protect the life of the unborn child, and to protect the life, health, and well-being of any pregnant woman within its jurisdiction, and it is therefore necessary to reasonably balance these interests to allow abortions only in certain circumstances which are set forth within this Act;

(6) That the state has an established history of working to protect the life of the unborn child, and the life, health, and well-being of pregnant women within its jurisdiction.

Section 2. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

Except as permitted by section 3, 4, 5, or 6 of this Act, any person who knowingly performs any procedure upon a pregnant woman, or uses any instrument upon a pregnant woman, or administers any medicine or drug or substance or device to a pregnant woman, or prescribes or procures or sells any medicine or drug or substance or device for use by a pregnant woman, or employs any other means, with the intent of causing the termination of the life of an unborn human being, is guilty of performing an illegal abortion, which is a Class 4 felony.

Section 3. Life of the Pregnant Woman Exception. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

No person may be prosecuted under section 2 of this Act if a licensed physician has made a judgment that an abortion is necessary to avert the death of the pregnant woman, unless in reaching that judgment the physician knowingly disregards accepted standards of medical practice. The basis of that judgment shall be specifically identified and documented in the woman�s medical records.

Section 4. Health of the Pregnant Woman Exception. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

No person may be prosecuted under section 2 of this Act if a licensed physician has made a judgment that an abortion is necessary because there is a serious risk of a substantial and irreversible impairment of the functioning of a major bodily organ or system of the pregnant woman should the pregnancy be continued and which risk could be prevented through an abortion, unless in reaching that judgment the physician knowingly disregards accepted standards of medical practice. The basis of that judgment shall be specifically identified and documented in the woman�s medical records.

Section 5. Rape of the Pregnant Woman Exception. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

No person may be prosecuted under section 2 of this Act if the woman has reported to the licensed physician that her pregnancy is the result of a rape as defined in � 22-22-1, in which she was the victim, and the physician has complied with sections 7 and 8 of this Act.

Section 6. Incest Exception. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

No person may be prosecuted under section 2 of this Act if the woman has reported to the licensed physician that her pregnancy is the result of incest as defined in section 14 of this Act, and the physician has complied with sections 7 and 8 of this Act.

Section 7. Condition for Rape and Incest Exceptions. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

Any abortion performed pursuant to section 5 or 6 of this Act must be performed before the completion of the twentieth week following the date of the pregnant woman�s last menstrual period, as determined by the physician, according to accepted standards of medical practice, and as confirmed by ultrasound. Any physician who knowingly disregards accepted standards of medical practice in making this determination is subject to a Class 4 felony.

Section 8. Reporting and Counseling Requirements. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows

Before performing an abortion pursuant to section 5 or 6 of this Act, the physician shall meet the following requirements:

(1) Advise the woman that a report of the rape or incest must be made, and prior to performing the abortion shall report the rape or incest immediately by telephone or otherwise to the state�s attorney or law enforcement of the county in which the rape or incest occurred, or, if the location is unknown, to the state�s attorney or law enforcement of the county in which the report is made to the physician. The report shall include the name, address, and date of birth of the woman, and, to the best of the woman�s ability, the date or dates of the reported rape or incest, the location where it occurred, and either the name and address of the perpetrator, if known, or, if not known, a description of the perpetrator and, in the case of incest, a description of the relationship between the pregnant woman and the perpetrator;

(2) Obtain the woman�s consent to collect a buccal or other biological sample from the woman, and a tissue sample from the remains of the embryo or fetus, each sufficient to perform forensic DNA analysis. The physician shall collect, secure, clearly label, and refrigerate the samples, and within twenty-four hours arrange with law enforcement to transfer custody of the samples;

(3) Provide the woman with the phone numbers and addresses of counseling services qualified in counseling victims of rape and incest in the area of her residence and also in the area in which the procedure is performed;

(4) Document all the actions taken pursuant to this section and maintain copies of all the documents and consents as part of the woman�s permanent medical records.

Nothing in this section limits a physician�s duty to report any information required by any other provision of South Dakota law.

Section 9. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows;

Each facility that performs abortions shall have a written policy on reporting rape and incest.

Section 10. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

The Department of Health shall publish, within one hundred eighty days after the effective date of this Act, forms to aid physicians in the accurate collection and reporting of information pursuant to this Act. The forms shall include the text of � 22-22-1, �25-1-6, and the definition of incest in section 14 of this Act, and such other information as the department shall conclude is necessary or helpful and appropriate to aid physicians. The department shall also provide, upon request, materials necessary to collect and preserve the biological samples required by this Act.

Section 11. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

Nothing in section 2 of this Act prohibits the prescription, sale, use, or administration of a contraceptive medicine, drug, substance or device, if prescribed, sold, used, or administered prior to the time when it could be determined that the woman is pregnant through conventional medical testing, and if the contraceptive measure is prescribed or sold in accordance with manufacturer instructions.

Nothing in section 2 of this Act prohibits any person from assisting a pregnant woman in obtaining an abortion in any other state where such procedure is legal.

Section 12. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

Whenever a physician is performing an abortion permitted by section 3 or 4 of this Act, the physician shall make reasonable medical efforts under the circumstances to preserve both the life of the pregnant woman and the life of her unborn child in a manner consistent with accepted standards of medical practice. Any physician, who knowingly disregards accepted standards of medical practice in failing to make such efforts, is subject to a Class 4 felony.

Section 13. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

Medical treatment provided to the pregnant woman by a licensed physician that results in the accidental or unintentional injury or death of the unborn child is not a violation of this Act.

Nothing in this Act subjects the pregnant woman upon whom any abortion is performed or attempted to any criminal conviction and penalty for an unlawful abortion.

No good faith report of rape or incest made under this Act may provide the basis for any criminal prosecution against the woman making such a report.

No woman making a report of incest who is eligible to obtain a legal abortion under section 6 of this Act may be prosecuted for the sexual conduct resulting in the pregnancy.

Section 14. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

Terms used in this Act mean:

(1) �Pregnant,� the human female reproductive condition of having a living unborn child within the pregnant woman�s body, throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and child birth;

(2) �Unborn human being� and �unborn child,� an individual living member of the species homo sapiens throughout the entire embryonic and fetal ages from fertilization to full gestation and childbirth;

(3) �Incest,� an act of sexual penetration, as defined in � 22-22-2, in which the woman was less than eighteen years of age at the time of sexual penetration and in which:

(a) The male performing the sexual penetration was related to the woman within the degrees of consanguinity within which marriages are, by the laws of this state, declared void pursuant to � 25-1-6, or

(b) The woman was the child of the spouse or former spouse of the male performing the sexual penetration.

Section 15. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

Chapters 187 and 188 of the 2005 Session Laws shall take effect pursuant to section 7 of chapter 187, as amended by section 1 of chapter 188, only in the event that the provisions of section 2 of this Act are declared unconstitutional or its enforcement is temporarily or permanently restrained or enjoined by judicial order.

Section 16. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

Nothing in the provisions of chapters 22-17 and 34-23A permit any action that is prohibited by this Act. To the extent that any provision of chapters 22-17 and 34-23A might be so construed, the provisions of this Act take precedence.

Section 17. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

Nothing in this Act authorizes a physician to perform an abortion unless the physician complies with all other applicable provisions of law, including the applicable provisions of chapter 34-23A.

Section 18. That chapter 34-23A be amended by adding thereto a NEW SECTION to read as follows:

Any physician who performs an abortion pursuant to section 3, 4, 5, or 6 of this Act shall submit a written statement to the Department of Health setting forth the following information as it relates to each abortion performed by the physician:

(1) The section of this Act pursuant to which the abortion was performed;

(2) All of the facts and circumstances upon which the physician relied in complying with all of the requirements and conditions of that section.

The written statement shall be submitted to the Department of Health at the end of each quarter of the year in which any abortion was performed by the physician. No statement made pursuant to this section may include the name of any pregnant woman having an abortion, but the physician shall provide a copy of the patient�s records with the patient�s names redacted, if requested by the Department of Health in writing.

Section 19. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

Nothing in this Act repeals, by implication or otherwise, any provision not explicitly repealed.

Section 20. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

If any provision of this Act is found to be unconstitutional or its enforcement temporarily or permanently restrained or enjoined by judicial order, the provision is severable; and the other provisions of this Act remain effective, except as provided in other sections of this Act.

Section 21. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

This Act shall be known, and may be cited, as An Act to Protect the Lives of Unborn Children, and the Interests and Health of Pregnant Mothers, by Prohibiting Abortions Except in Cases Where the Mother�s Life or Health is at Risk, and in Cases of Rape and Incest.

 

 

 

 

 



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