The legislation is meant to prompt a national legal battle targeting the 1973 landmark Supreme Court decision, Roe v. Wade, that legalized abortion. During the hour-long debate on the Senate floor, South Dakota lawmakers often referenced Roe v. Wade.
Rep. Bill Napoli, R-Rapid City, says it's his job to save lives.
"I believe the message from Roe v. Wade is simple -- abortion on demand, abortion as a means of birth control, abortion as a means to destroy human life -- however you want to define it. That's the message from Roe v. Wade that I believe should not be the message from this country or this state," said Napoli.
I believe the message from Roe v. Wade is simple -- abortion on demand, abortion as a means of birth control, abortion as a means to destroy human life. I believe (that) should not be the message from this country or this state.Rep. Bill Napoli, R-Rapid City
There were four attempts by lawmakers to amend the proposed bill. One amendment offered an exception to allow an abortion in the case of rape or incest. Another amendment would have allowed an abortion if the health of the pregnant woman was at risk, not just her life. A third amendment would have referred the abortion ban to a vote of the people.
Each attempt at amending the legislation failed. Supporters of the bill say they don't want the measure watered down with exceptions.
Several lawmakers say it's time to give states the right to decide what should be legal within their borders.
Rep. Clarence Kooistra, R-Garretson, voted against the abortion ban. He says he took an oath to uphold the Constitution of the United States, and that includes the Supreme Court ruling Roe vs. Wade.
"I may be in the minority today. I can tell you outside this Capitol and throughout South Dakota there is a silent majority, and they support the position that many of us in the minority have here today," Kooistra said.
It's that silent majority that Hamline University law professor Mary Jane Morrison says can change the law.
"If the voters of South Dakota want the law like this all they have to do is let the current Legislature stay as constituted as it is," Morrison said. "If they don't want a law like this, all they have to do is elect other people who will repeal the law."
If the law is repealed, Morrison says any court challenge would be moot. She says the bill that's being considered deals with settled law, and she doubts the U.S. Supreme Court would agree to even hear the case. Morrison says it'll take years and millions of dollars before the high court even has the opportunity to decide to hear it.
"South Dakota at some point, will find that it's actually losing control of the case because of all of the people who will be filing briefs, from conservative think tanks and liberal think tanks and medical associations and so on," Morrison said.
Morrison says the legislation could also go before South Dakota's Supreme Court, testing if the legislation satisfies the state's Constitution. She says if the state court strikes it down then the federal case is dead. Morrison says with the appointments of Justices Roberts and Alito, the makeup of the U.S. Supreme Court is unchanged.
Lawmakers are hoping it'll take years before the U.S. Supreme Court could hear the case.
Rep. Julie Bartling, D-Burke, is one of the prime sponsors of the abortion ban legislation.
"There is still another chance that President Bush will have to place another justice on that bench, as Justice Stevens is 87 years old and nearing his retirement years," Bartling reminded fellow lawmakers. "In my opinion, it is the time for this South Dakota Legislature to deal with this issue and protect the lives and the rights of unborn children."
The bill goes back to the South Dakota House because of a change a senate committee made to the legislation. If the House passes the bill it goes to Gov. Mike Rounds. He has not said whether he'll sign it. Rounds will say, though, that he opposes legal abortions.