South Dakota Governor Latest To Introduce Texas Abortion Copycat Bill — Here Are All The States Weighing A Similar Ban

Topline

South Dakota Gov. Kristi Noem (R) announced legislation Friday that copies provisions of Texas’ controversial near-total ban on abortion, as a growing number of GOP state legislators across the country move to try and get around U.S. Supreme Court precedent legalizing abortion by following Texas’ lead—here’s the full list.

Women rights activists hold up signs as they gather at Freedom Plaza on October 2, 2021 in … [+] Washington, DC.

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Key Facts

The South Dakota bill bans all abortions after approximately six weeks, as is the case with Texas’ Senate Bill 8 (SB 8), and it enforces the ban by letting private citizens sue anyone who “aids or abets” an abortion for at least $10,000 in damages.

The bill was announced two weeks after lawmakers in Arizona unveiled their own SB 8 copycat bill, which bans abortions after approximately six weeks.

Lawmakers in Missouri, Alabama and Arkansas filed legislation mirroring SB 8 in December, though Arkansas’ legislation goes beyond the Texas law’s six-week limit and bans all abortions except when the mother’s life is at risk.

A Florida lawmaker was the first to introduce a bill copying SB 8 in September.

Ohio lawmakers introduced a SB 8 copycat bill in November that bans all abortions.

What To Watch For

Whether the Texas law will hold up in court. A lawsuit brought by abortion providers is now pending before the Texas Supreme Court, though the U.S. Supreme Court previously limited the case so it can only move forward against certain defendants—meaning even if a court does side with providers, they can’t totally block the law. It’s also not clear when the case will be resolved. Abortion providers have accused the 5th Circuit Court of Appeals of delaying the case by sending it to the Texas Supreme Court after the U.S. Supreme Court’s ruling, rather than a lower district court that’s already blocked SB 8 once and is more likely to rule in providers’ favor. The abortion providers asked the U.S. Supreme Court to send the case directly to the district court to speed things up, but the Supreme Court denied their request on Thursday.

Chief Critic

“Anti-choice extremist politicians in Arkansas, Alabama, and other states across the country are clearly emboldened by the Supreme Court supermajority hostile to reproductive freedom, and these lawmakers will stop at nothing to attack abortion from every angle imaginable,” NARAL Pro-Choice America President Mini Timmaraju said in a December statement in response to the Alabama and Arkansas bills.

Tangent

States could look to follow SB 8 for more than just restricting abortion, as opponents of the Texas law have argued its lawsuit provision—which was designed to make it harder for the law to be struck down in court—could also be used to get around federal protections for gun rights or same-sex marriage.

Key Background

SB 8 went into effect on September 1 as the most restrictive abortion law to take effect in the U.S. since Roe v. Wade was decided in 1973, banning nearly all abortions in the state. The Texas law and the copycat bills it’s inspired are part of a broader effort by Republican state lawmakers to limit or ban abortion, with the Guttmacher Institute reporting more than 100 state abortion restrictions have been enacted just this year alone. While other abortion bans have been swiftly struck down in court, SB 8 has so far largely evaded judicial scrutiny due to its lawsuit mechanism, which makes it harder for plaintiffs to name defendants that can actually be blocked from enforcing the law. The Supreme Court declined to strike down the law when it first went into effect in response to the abortion providers’ challenge, ruling it was too soon to challenge the law, and though a district court judge issued an injunction that blocked the law, it only lasted for two days before an appeals court blocked that order and put the law back into effect.

What We Don’t Know

Whether SB 8 and its copycat bills and their lawsuit provisions will soon even be necessary to legally restrict abortion. In addition to its SB 8 cases, the Supreme Court is also now weighing whether to uphold Mississippi’s 15-week abortion ban and potentially significantly weaken or overturn Roe v. Wade by allowing prohibitions on abortion even before a fetus is viable. The court’s conservative justices signaled during oral arguments in the case December 1 that they were likely to side with Mississippi, which could pave the way for states to outright ban or restrict abortion without needing provisions that would help get around the courts. A decision in the Mississippi case isn’t expected for several months, but will be released by the time the Supreme Court term ends in late June.