PIERRE - Sometime in the next week or so, Gov. Mike Rounds will make a decision that could reverberate across the nation, work its way through the federal court system and eventually land at the doorstep of the highest court in the land.
Rounds is considering whether to sign a measure approved last week by the South Dakota Legislature that would ban almost all abortions in the state and set up a challenge to Roe v. Wade, the 1973 Supreme Court decision that became the legal foundation for abortion in the nation.
The governor consistently says he opposes abortion, yet he vetoed similar legislation two years ago because of concerns about the wording.
He says he is inclined to sign this version, despite misgivings about its lack of exceptions for rape and incest and its frontal assault on Roe v. Wade.
It's a decision that will echo at many levels, from legal to financial to political.
If Rounds signs the bill, it probably will be held up in court for years and cost the state millions of dollars to defend. If he doesn't, he runs the risk of alienating a big part of his political base as he prepares to run for re-election in November. Political scientists also say Rounds' decision could follow him if he ever decides to seek federal office.
Rounds has refused repeated interview requests - verbal and written - from the Argus Leader. When he has spoken to other media, he hasn't said how difficult this decision is for him personally. But the fact he hasn't yet taken a position and is avoiding tough questions might be seen as a sign that he realizes the gravity of it.
"This goes with part of the job," he said at a recent press conference in Pierre. "While there are other parts of the job that I truly take more relish in, in terms of economic development and working on new education opportunities and so forth, this is part of the job.
"This is part of the challenge. It is a difficult part, and I understand that it's a very emotionally charged part of the job."
Donald Dahlin, a University of South Dakota professor and administrator, said he thinks Rounds will sign the bill. Bob Burns, a South Dakota State University political science professor, said he thinks the governor is considering a veto.
They agree that he's strong enough politically that either action wouldn't be likely to hurt a re-election bid this year.
"From strictly the politics of it, he's in a pretty good position," Dahlin said. "I'm guessing he's going to sign it, but even under the other circumstance (a veto), it's hard for me to see that he could lose the nomination in a primary."
Burns agrees that there's probably no short-term downside to signing the bill.
"But should he decide, for example, to run for the U.S. Senate in two years, he'd have to deal with a pretty radical position on abortion - that is, no exceptions - versus (incumbent) Democrat Sen.) Tim Johnson's fairly moderate position," Burns said.
Dahlin said the sponsors have tried to answer the governor's objections from two years ago.
"Given his personal opposition to abortion, much less the politics of it, I would just be very surprised if he doesn't sign it, and then the lawsuits commence," Dahlin said. "If he signs it, then he sort of solidifies his base, and the pro-choice folks, well, they're probably not going to vote for him, anyway. Politically, he's in a pretty safe position, at least in the short run."
Burns said he thinks Rounds is troubled by the proposed frontal attack on Roe. The governor has said several times that incremental steps to restrict abortion are a better approach.
"For a couple of reasons, he might consider a veto," Burns said. "It doesn't fit what he considers to be the best political strategy, and it doesn't fit what appears to be the opinion of a majority of the state."
Burns said polling shows a majority of South Dakotans, while not in favor of abortion on demand, would allow the procedure in some circumstances, especially if restricted only to cases of rape or incest or to protect the health of a pregnant woman.
Rep. Roger Hunt, R-Brandon, prime sponsor of the bill, argued that any exceptions weaken the position that life begins at conception and that all life deserves equal protection.
"The Legislature is more pro-life than the general population," Burns said.
Supreme Court chances
While several states have similar bills in the works, South Dakota's early, short session has put the state in the national spotlight as first to have a ban reach a governor's desk. That has drawn attention from national and foreign news organizations and from national interest groups on both sides of the abortion debate.
"This has been a stunner," said Marjorie Signer, communications director for Religious Coalition for Reproductive Choice. "This has just absolutely taken everyone in the country by storm.
"Everybody is watching and waiting for what your governor will do."
The head of Priests for Life also said the country is watching South Dakota.
"South Dakota is positioned at this point in time as a living symbol of what's happening gradually across the country," said the Rev. Frank Pavone.
The state's attempt to ban almost all abortions, he said, "is an expression of the kind of right that has to be restored not only to the unborn but also to state governments across our land."
The bill would make it a felony for a doctor to perform an abortion in all cases except to save the life of a pregnant woman. It does not include criminal penalties for women seeking or having abortions.
The sponsors' stated goal is to pass a law that forces the U.S. Supreme Court to reconsider the foundation arguments made in the Roe v. Wade case. With two new judges - Chief Justice John Roberts and Justice Samuel Alito - on the U.S. Supreme Court, anti-abortion forces argue their side is gaining strength on the issue.
But it's a stretch to expect South Dakota's bill to force a Roe reversal, according to Michael Myers, a USD law professor.
"I think most legal scholars believe the South Dakota statute has a very remote chance of being upheld - a snowball entering a warm location in its chance of survival," Myers said.
In recent years, Myers' law-school courses have included a focus on Roe. He said he often asks on quizzes where in that 1973 decision the high court determined when life begins.
"The more perceptive students answer that the court didn't make that determination," Myers said.
That absence of a definitive answer to life's beginning gives sponsors hope they'll be heard at the highest bench in the country.
Debating the science
Hunt's bill relies on a state task force's conclusion that scientific advances since Roe v. Wade show that life begins at conception.
The findings of the task force, criticized as pre-determined by some, are described in the bill as being based on scientific advances since the 1973 decision.
That's a potential argument, if the court would even agree to hear the case, Myers said. Having several bills in several different states and federal court circuits could increase the chances that the Supreme Court would agree to step in and settle things again.
"My feeling is, if they get different rulings from different circuits, even though Roe is established law, established law can become unestablished when circumstances change and there's a good rationale for it," he said.
Getting a hearing and a favorable ruling are two different things, though. Even with two new justices, many people who watch the Roe issue closely think the court would uphold the basic 1973 decision 5-4.
Rounds has said that possibility is cause for concern, since some people "believe every time they lose in court it sends a message to young voters and others that abortion is OK."
The Rev. Pavone said he understands those concerns, since there's always an uncertainty in a court challenge.
"But when will the right timing come? That's something nobody knows for sure," he said. "Ultimately, it is a question of the sovereign state of South Dakota doing what it's people feel is best."
Rounds also has suggested that the frontal attack could be important to unity among anti-abortion forces.
"Many people will not believe this will not work unless it is tried," he said. "For those individuals to continue to work in unison with those of us who believe the most successful approach will be chipping away at the decisions, they would at least be given the opportunity to be proven wrong."