South Dakota Abortion Laws
By John Mascolo, Esq. | Legally reviewed by Nicole Prebeck, Esq. | Last reviewed April 26, 2024
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Abortion is illegal in South Dakota unless necessary to save the life of the pregnant female.
South Dakota has one of the most restrictive abortion laws in the U.S. It provides for a near-total abortion ban in the Mount Rushmore state. There are no exceptions if the pregnancy resulted from sexual assault, incest, or human trafficking. There are also no exceptions associated with risks to the health of the pregnant woman.
South Dakota Abortion Law After Dobbs
In June 2022, the U.S. Supreme Court overruled Roe v. Wade in Dobbs v. Jackson Women's Health Organization. The Dobbs decision returned to the states the power to regulate and even prohibit abortion. It overturned decades of court precedent that recognized a constitutional right to abortion.
Abortion Bans
In 2005, South Dakota lawmakers enacted a trigger law. This abortion statute was set to take effect upon a reversal of Roe by the Supreme Court. The Dobbs ruling made the 2005 abortion ban into active law.
As a result, South Dakota bans abortion at all stages of pregnancy. The only exception exists in cases where abortion is necessary to preserve the life of the pregnant female.
Although the current law bans almost all abortions, South Dakota also maintains laws that outlaw partial-birth abortion, abortion based on sex selection, and abortion based on a Down Syndrome diagnosis.
Abortion Regulations
Despite its outright abortion ban, South Dakota has either passed or not repealed several other regulations related to abortion services. These include laws related to parental consent for minors seeking abortions, informed consent, waiting periods, and scheduling restrictions.
To those who support reproductive rights, these regulations are not based on health care but rather obstacles derived from politics that take away a woman's choice to make decisions about her own body.
To those who oppose legal abortion, these laws recognize the right to life of the fetus.
Ballot Initiatives
In 2006 and 2008, South Dakota politicians passed laws banning abortion. These laws directly sought to challenge the prior right to abortion expressed in Roe. In each instance, abortion providers like Planned Parenthood challenged the laws through a ballot initiative and voters repealed these laws.
In 2024, abortion rights advocates are gathering signatures to place a state constitutional amendment on the ballot that grants protections for abortion similar to the now-overturned Roe decision. If they succeed, South Dakotans will have the ability to restore abortion access through the ballot box.
Republicans who dominate the State House and State Senate oppose the effort to let voters decide. They passed a new act that permits residents to withdraw their signatures from such ballot petitions.
Governor Kristi Noem, also an opponent of legal abortion, signed the act into law. It remains to be seen whether this will thwart the effort to meet the signature requirement and derail the vote.
South Dakota Abortion Laws at a Glance
Abortion rights remain a controversial topic in American politics. After Dobbs, the legality of abortion is unsettled. Laws differ from state to state. Determining whether and when an abortion is legal in your state can require thorough research.
The table below provides a summary of the abortion laws in South Dakota.
Relevant South Dakota Abortion Statutes (Laws) |
South Dakota Codified Laws Title 22, Crimes Chapter 22-17, Unauthorized Abortion
Title 28, Public Welfare and Assistance Chapter 6, Medical Services to the Indigent
Title 34, Public Health and Safety Chapter 34-23A, Performance of Abortions
|
|---|---|
When Is Abortion Legal? |
Abortion is prohibited in South Dakota. The only time that abortion is legal is when the abortion is necessary to save the life of the pregnant female. |
Consent Requirements |
Adult: Other than in cases of medical emergency, an adult must provide informed and voluntary consent. In South Dakota, that requires in-person or phone counseling with the physician at least 24 hours before the procedure or treatment. It requires the physician to also provide detailed information promoting birth over abortion. Such information will relate to fetal development, risks associated with abortion and pregnancy, financial and other support available for prenatal and maternal health and childbirth, and more. Minor: Other than in cases of medical emergency, along with the above information and consent, there must be 48-hour prior notice to a parent or legal guardian, or a court order granting a waiver (judicial bypass). |
Criminal Penalty for Unlawful Abortion |
Any person other than the pregnant woman who receives an abortion can face charges for performing or participating in an unlawful abortion. The crime is a Class 6 Felony, punishable by up to two years in prison, a fine of up to $4,000, or both. |
Is There Access to Medication Abortion? |
Not in the state. With South Dakota's near-total abortion ban, no abortion clinics operate in the state. Residents do leave the state and seek abortion pills in states where abortion remains legal. |
Physician Licensing Requirements |
Only licensed physicians can perform or induce abortions in South Dakota. |
Note: State laws on abortion are often in flux. Changes may come through new statutes or rulings from court cases. To be up-to-date, contact a South Dakota healthcare attorney or conduct your own legal research to verify the status of any state law(s) you are reviewing.
How Does South Dakota Compare to Other States?
Even before the Supreme Court's decision to return authority over abortion to the states, South Dakota law contained several prohibitions, regulations, and roadblocks related to abortion.
South Dakota is one of about 17 states that now bans most abortions. Other states where most abortions are illegal include North Dakota, Texas, and Idaho.
In contrast, some 30 states and D.C. permit abortion up to fetal viability, the point where the fetus can survive outside the uterus with assistance. In nearby Minnesota, abortion remains legal throughout pregnancy.
In some states like Iowa, abortion litigation remains pending in state court. Abortion rights organizations also expect to see abortion issues on the ballots of several states in the November 2024 election.
A Note About Medication Abortion
The Food and Drug Administration (FDA) approved the use of medication abortion in 2000. The common two-pill regimen accounts for some 63% of abortions in the U.S. today. Patients usually take abortion medication within the first trimester (12 weeks) of pregnancy.
In 2016 and 2021, the FDA revised its protocols related to abortion medication. As a result, more states moved to telemedicine as the Covid-19 pandemic brought challenges to in-person appointments.
In 2022, abortion opponents filed a legal challenge to the approval and use of mifepristone, one of the two drugs used in medication abortion. The outcome of the lawsuit will be key in states like South Dakota where patients seek access to abortion pills from out of state. The South Dakota Attorney General has opposed such access to mifepristone.
The U.S. Supreme Court stayed lower court orders and permitted access to the drug while the case moved through the federal courts. A final decision is expected in 2024.
Related Resources for Abortion Laws
You can locate more general information on reproductive rights and abortion laws through the following FindLaw links:
Have More Questions About Abortion? Talk to a Lawyer
After Dobbs, South Dakota abortion rights came to a halt. Without national standards, the state of the law remains unsettled. If you have questions related to abortion, seek legal advice. You can also find a South Dakota attorney to answer specific questions about an individual case.
Next Steps: Search for a Local Attorney
Contact a qualified attorney.