Investigations Law and Policy

South Dakota Spends $170,000 Defending Anti-Choice Law

Sharona Coutts

The state has spent $170,000 in taxpayer money since 2011 defending a single anti-choice law, according to new figures from the state attorney general obtained by Rewire.

The State of South Dakota has spent $170,000 in taxpayer money since 2011 defending a single anti-choice law, according to new figures from the state attorney general obtained by Rewire.

The amount is based on the number of hours that staff attorneys in South Dakota’s Office of the Attorney General have spent working on HB 1217, a bill linked to controversial lawyer Harold Cassidy.

That bill contains numerous provisions that have been slammed by doctors and reproductive rights advocates. It forces women seeking abortions to wait 72 hours between their first consultation with a doctor, and when the doctor may perform the abortion. It also obliges doctors to “inform” the woman that abortion is linked to suicide, even though the medical consensus is that such claims are false.

Possibly the most controversial provision, however, is the requirement for women to receive “counseling” from an anti-choice crisis pregnancy center as a condition of accessing abortion.

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The latter requirement remains the subject of litigation in Planned Parenthood of Minnesota, North Dakota, South Dakota v. Daugaard. The case has taken more than 2,000 hours of work by lawyers in the state’s attorney general’s office to date, according to Sara Rabern, a spokesperson for the attorney general.

The office of the attorney general calculates the hourly billing rate for their staff attorneys at $84, a rate—though not close to what private attorneys typically charge—that “is figured to be similar to court appointed council in criminal cases set by our Supreme Court,” Rabern wrote in an email to Rewire.

However, Rabern said the “fair market value” of the state attorneys’ services would be closer to $200 per hour, based on what “attorneys in private practice with the same level of experience would charge.” That would bring the expense so far to $406,000.

“It all depends on how you characterize what the state has ‘spent’ on the litigation: the true ‘fair market value’ of the services, or the ‘discounted’ rate we would use to actually bill an agency for our services,” Rabern wrote.

South Dakota is not the only state facing ballooning costs from defending anti-choice laws. Texas, Kansas, and Idaho have each spent hundreds of thousands of dollars on litigation relating to restrictive abortion laws, some of which were drafted by groups that are usually affiliated with stridently “free market” groups, which usually oppose government spending.

The tab for defending South Dakota’s HB 1217 could balloon. Already this year, spending has occurred at a far higher rate than in the previous three years.

And when the attorney general was asked in 2011 to estimate how much it could cost to defend HB 1217, the figures ranged from $1.75 million to $4.15 million, according to a document obtained by Rewire. The higher figure contains a $1.75 million contingency to cover Planned Parenthood’s costs, in the event that Planned Parenthood wins the litigation.

Should the case wind its way to higher courts of appeal, South Dakotans will face ever higher costs. For the moment, the litigation remains in early stages, with the parties still requesting documents from each other. No trial date has yet been set.

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