When the South Dakota legislature passed H.B. 1217, creating a mandatory 72-hour waiting period for an abortion and forcing women to undergo counseling at non-medical, faith-based crisis pregnancy centers, Governor Dennis Daugaard took his time before signing the bill into law.  Why the wait?  According to news reports, he wanted time to figure out how to cover the legal expenses in the inevitable law suits forcing the state to defend what most experts on both sides saw as an unconstitutional encroachment on a woman’s right to choose, as well as a possible violation of separation of church and state.

According to the governor, a “private donor” then pledged to provide funding to cover the costs of the legislation.

Signing the bill in private, Gov. Daugaard released a statement saying:

”I hope that women who are considering an abortion will use this three-day period to make good choices.” 

The people not making good choices would be the legislators that passed the bill, and the governor who signed it into law under the promise that private funds would be available to defend the restrictions in court.

Covering the cost of the suit is of vital importance for the state.  South Dakota has defended and lost numerous court cases in attempting to restrict abortion rights, paying out over half a million dollars in court costs to Planned Parenthood over the last 15 years because in these cases the state had to reimburse the organization for attorneys fees.

But there is a great deal of enthusiasm in the legislature around the bill, and its key sponsor, Rep. Roger Hunt has offered to solicit donations for a defense fund in order to ensure the governor signed it.  Also believed to be fundraising for its defense is Leslee Unruh, founder of Alpha Center, a spirited lobbyist for H.B. 1217 and a pregnancy help center owner whose group is already providing trainings in anticipation of the new mandate, scheduled to go into effect July 1^st.   

The primary worry for many in the legislature is that this isn’t the first time sponsors have offered to raise money for legal defense for anti-abortion bills, and pledges aren’t the same as actual dollars.  Prior to March of 2011, the last donation to the “Life Protection Fund,” as it is called, was in October of 2006, bringing total donations to that fund just under $12,500.  Interest on the money in the subsequent five years brought that to $14,000.  Now the “flood” of money into the fund has brought it to just over $19,000.

Twenty grand isn’t going to get the defense team very far when it comes to litigation, and it’s going to stretch even thinner when it becomes apparent that those dollars are already spoken for.  The state is still in the process of defending its last unconstitutional anti-abortion bill – the 2005 law requiring doctors to tell women seeking abortions that abortion terminates “the life of a whole, separate, unique, living human being,” that she has a relationship with her unborn child that is being terminated, and that “risk of suicide” is a medical side effect of abortion.

The 2005 law, which is still being heard in the 8^th circuit, has currently run up $1.7 million just in attorney’s fees for Planned Parenthood Minnesota/North Dakota/South Dakota, according to one source in the South Dakota legislature who spoke to Rewire.  Defending the new bill (which essentially incorporates and supercedes the 2005 law) could remand the 2005 lawsuit, forcing the state to foot the bill for the entirety of Planned Parenthoods legal fees in the earlier case.

Still, it’s always possible that Hunt, Unruh and whomever else is involved in the solicitation of donations may be highly successful in bringing in the millions of dollars many believe will be necessary to defend this new bill, on top of the fees already owed on previous litigation.

If so, then comes the real question: how are these donations coming about and, essentially, who is paying for this legislation?

Some South Dakota Republicans are deeply concerned about the implications of passing bills based whether or not donors will step up and pay for the legal costs to defend them means for lawmaking in the state.

In an interview with Rewire, Senator Deb Peters, a Republican legislator from Minnehaha County, said:

“There is no statute that limits the amount of money an individual can contribute to the defense fund. A person could write a check for any amount they want.” 

The lack of donation caps, rules on residency, even rules on whether companies or non-profits can donate to the fund make them prime targets to potentially allow any group or entity to simply write a check to pay for a bill they would like to see passed regardless of possible unconstitutionality.

“Either the state of South Dakota believes as a matter of policy that this is what we do and we pay for it or we don’t,” said Senator Joni Culter, a Republican also from Minnehaha County told Rewire. “When we open the door for outsiders to come in and pay for it, that’s just bad.”

Cutler also notes that there will be costs involved not just in defending the bill, but in tax-payer dollars eventually going to staff up crisis pregnancy centers and to other expenses required in order to “counsel” every woman considering an abortion. 

“If the state is going to mandate that [pregnancy centers] do things, the state is going to eventually have to give them funds to pay for that.”

But primarily, Cutler’s biggest concern is that South Dakota will continue to become a legislative battleground where bills can be bought and paid for with a promise of defense fund donation. 

“When we’re using the state’s resources to litigate private matters just because someone claims someone else is going to drop a coin into a bucket, that’s just bad government,” she said.