The Abortion Question by Rep. Will Mortenson

The Abortion Question by Rep. Will Mortenson (R-Central South Dakota). February 11, 2024.

Abortion is a question most politicians don’t want to talk about. They know it is divisive and draws strong, emotional reactions in opposite directions. It should. The question strikes at some of the most fundamental truths facing us as humans. Passion, on both sides, is natural. To support that passion, though, all of us in South Dakota have a duty to research and reflect on the abortion question.

We need to start studying because this year will be the most important in the history of our state for determining abortion policy in South Dakota. After about fifty years of the question being decided by unelected judges in Washington, DC, the Supreme Court’s decision in Dobbs returns the abortion question to the people to be decided through our legislative processes. The Legislature has a number of proposals before us, including a measure to clarify the legality of abortion when necessary to protect the mother. More importantly, the Dobbs decision means that you, the citizens and voters of South Dakota, be called upon to vote on ballot measures pertaining to abortion. So, in the next year, we will be deciding the abortion question in South Dakota – together.

A pro-abortion ballot measure has been proposed by Democratic partisan political activists, who claim they already have enough signatures to qualify for the ballot. I have read the proposed constitutional change several times. Given the likelihood of the measure being on our ballot, we held a hearing in the House State Affairs committee last week to hear from the measure’s sponsors and opponents. The hearing was on-the-merits and dug deeply into the language of the proposed constitutional amendment. I’m proud of the proceeding. It provided a forum for public debate that wasn’t just in a campaign ad or a campaign press conference. While the hearing was occasionally tense, it provided great context for the consequences (intended or unintended) of enshrining a Right to Abortion in the state’s constitution.

At that hearing, both sides acknowledged that the measure would permit terminating the life of a healthy child all the way until birth (so-called “late term abortion”). Most concerning to me, the Sponsors acknowledged that South Dakota could not “regulate” abortion at all in the first trimester. South Dakota could not require, for example, that an abortion be carried out by a medical care provider. We could not require safety standards in how the procedure is conducted, or even require that it be done in a medical facility. I sincerely do not know whether the removal of all safety standards is an intended or unintended consequence. It may be the product of poor drafting or the product of a very extreme view of how medical procedures should be carried out. Either way, the proposed ballot measure would create a legal framework that is clearly worse for pregnant mothers, whatever your view of whether abortion should be allowed at this stage.

In fairness, I was not predisposed to favoring the measure. I have been open with voters since I first ran about my position on abortion. I am Pro-Life. Abortion should not be used as birth control. I believe unborn children have an interest that deserves protection under our laws. I believe that the child’s interest is present from the onset of a pregnancy and grows as the baby develops. I also think we need to protect the interest, health, and life of the mother. So, we have multiple interests: that of the unborn child and that of the mother. My goal is to protect them both.

After closely reading the proposed Right to Abortion amendment, it is clear the measure fails in both regards. It does not protect mothers and does not protect children. The pro-abortion proposal would repeal and prohibit any safety standards for mothers in the first trimester and legalize terminating the life of a child who could survive outside the womb. Placing the Right to Abortion next to the Right to Free Speech in our constitution is abhorrent to me. The right to terminate another’s life is not a right we should enshrine in our constitution. After doing my homework on the measure, I strongly oppose the constitutional amendment and hope that it is defeated at the ballot next November.

I know full-well that many voters will disagree with some portion (if not all) of the above two paragraphs. There are dozens of different versions of policy that our state could adopt to acknowledge the interest of the mother and the interest of the child, and I expect the Legislature will likely consider a number of them in the coming years. The proposed pro-abortion constitutional amendment would override all of them.

Whatever your position on the abortion question today, I think we do a disservice to each other and to good policy when we avoid talking about contentious topics. I would invite each of you to research and reflect on when, if ever, we should allow a pregnancy to be terminated. Take time to read the proposed constitutional amendment carefully. It can be found on the Secretary of State’s website. Talk to friends, relatives, or leaders that you trust. Lives depend on it. We are going to answer the abortion question as a state in the coming year, whether we like it or not. The discussion will be emotional. That’s our messy political system at work. We owe it to ourselves, each other, and the generations that come after us to consider the question thoroughly and earnestly.

Protect Our Ag Land by Rep. Will Mortenson (R-Fort Pierre). January 30, 2024.

When I’m not hustling through the Capitol or working at the ranch, I make my living as an attorney. I largely represent farmers and ranchers in central South Dakota. I help them set up a partnership or an LLC, navigate regulation, buy, sell, and lease land, and (hopefully) pass their farms and ranches on to their kids and grandkids. It is rewarding work for good people. 

There just aren’t as many farmers as there used to be in South Dakota. Bigger and faster equipment, better seed genetics, and more precise technology added up to one farmer covering more ground. Gains in productivity means fewer farmers and bigger farms. That’s not necessarily a bad thing, as long as we keep our South Dakota ag land for South Dakotans.

So, when Governor Noem announced last year that she was interested in keeping our ag land out of foreign hands, I was thrilled. I know that outside interests have been increasingly targeting our ag land. I’ve seen large farm and ranch purchases by companies from other states. These companies could be owned by anyone. Maybe the owners are a group of New York investors. Maybe it is a foreign country’s sovereign wealth fund. Maybe the owners are a blend of South Dakotans, foreign citizens, and corporations. I don’t know who is buying our ag land, but we can no longer afford to turn a blind eye and wait until we have a big problem. I’m glad Governor continues to push to keep our South Dakota ag land for South Dakotans. 

In 1979, South Dakota banned foreign ownership of more than 160 acres of ag land. But – we left a massive loophole for corporations, LLCs, and partnerships. Foreigners can own these types of entities and buy as much ag land as they wish. Last year, I wrote a bill to require disclosure of foreign-ownership of ag land by these entities. This year, I’m proud to support the Governor’s proposal to close the entity loophole, clarify our foreign-owned ag land restriction, and improve reporting and enforcement. The Governor’s measure won’t disrupt how our farmers and ranchers go about their business or create new bureaucracy. It is a solid, effective proposal.

I am a firm believer in free trade, particularly when it comes to our ag products. Corn, wheat, cattle, and soybean prices are set by aggregate global demand. Our products are sold in a global market. Tariffs and trade restrictions largely just harm our ag producers. While I’m an ardent supporter of free trade, there is one thing we cannot trade: our land. We don’t want to look up in twenty years to find that most of our farmers are tilling land owned by a Swedish corporation or that our ranchers are just tending cattle for the Saudi Arabian sovereign wealth fund. We want to trade our farm products. We don’t want to trade away our farms.

In South Dakota, we are tied to the land. Agriculture is our biggest industry. Hunting, fishing, and hiking are our preeminent forms of recreation. Our ag land is our heritage. When I’m in my Fort Pierre law office in a few decades, I still want to be helping South Dakota farmers and ranchers pass their operations to their kids and grandkids. It’s our land, and they aren’t making any more of it. We need to preserve it for generations to come.

Public Defense in South Dakota by Rep. Will Mortenson (R-Fort Pierre). January 21, 2024.

You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.” These words, contained in the now-famous Miranda rights, reflect every American’s right to a speedy and fair trial as found in the Sixth Amendment to the United States Constitution. The right to an attorney, even if you cannot afford one, is a bedrock constitutional principle that promotes equal justice under our laws.

In the past year, Chief Justice Steven Jensen spearheaded an effort to improve the quality of public defense, thus ensuring we live up to our constitutional obligation to our citizens in South Dakota. The Chief Justice assembled a task force including prosecutors, judges, private attorneys, public defenders, county commissioners, the Dean of the USD Law School, and two legislators: Sen. Jim Mehlhaff (R-Pierre) and me. We met all summer, learning about our public defense system and how it compares to public defense provided in our sister states.

Today, South Dakota requires counties to foot the bill for virtually all public defense costs. We are one of only two states that places this full burden on counties. Collectively, the counties spend about $22 million on public defense each year, including a little over $2 million on appellate and habeas corpus claims (plain English: claims of wrongful imprisonment). While the prosecutors have a state Attorney General’s office to handle appeals, coordinate efforts, and to provide prosecutorial support, there is no such entity for public defenders to lean on. We found a lot of areas that could use improvement.

The task force recommended a plan that Governor Kristi Noem has now endorsed to create a state public defender office to handle criminal appeals, habeas corpus claims, and abuse and neglect appeals. The state public defender would also lead public defense statewide, ensuring local defense attorneys have adequate training and support. The office would be small – a Chief Public Defender, a couple other attorneys, and two staff members. It would take all $2+ Million in cost off the counties, and instead would fund this office with about $1.4 Million in state general funds. This would be a cost savings to the county and an efficiency for the taxpayers. The state public defender office would help to guarantee that our citizens are granted their Sixth Amendment right to an attorney, and an effective one at that.

The right to have the state provide you with public defense is very limited. Under our system (including if this proposal is adopted), a citizen accused of a crime is provided a court-appointed attorney if they cannot afford one at the time of arrest. The citizen is then on the hook for paying back their court-appointed attorney fees to the county. The cost to the county comes when the defendant absolutely can’t pay, despite collection efforts. The provision of legal defense is, thus, targeted to our poorest citizens. Those folks are among the most downtrodden among us, often saddled with addiction and debt. They don’t have lobbyists and their voices often aren’t heard in the Capitol. Yet – their constitutional rights must be protected, just like all other citizens. I’m glad we are working to protect and advance the constitutional rights of all South Dakotans this year.

Trust the Voters by Rep. Will Mortenson (R – Fort Pierre). January 16, 2024.

I am proud of the work our state legislature did last year to ensure our elections are secure and to give voters confidence that their votes are counted quickly and accurately. We should take pride in our election processes in South Dakota. They are among the very best in the country, led by competent and trustworthy local officials who are deserving of our thanks.

Despite our areas of success, South Dakota’s laws remain deficient in one particular area: nominating statewide officeholders. Our process shuts out the voters. This year, I’m hopeful we put voters first and make our nomination process more responsive to the people of South Dakota.

Currently, most statewide officeholders are nominated at a partisan convention, rather than by the voters in a primary election. While your members of Congress, the Governor, county officials, and state legislators are all nominated in primary elections where you get to vote, the Attorney General, Secretary of State, Treasurer, Auditor, Commissioner of School and Public Lands, and Public Utilities Commissioners are all chosen by a few hundred party insiders at a state convention.

In my party, the GOP, we’ve had some party in-fighting. Factions have arisen nationally that have infected our party locally. The convention process feeds the in-fighting. It turns our convention from an event for party unity and supporting our candidates into a forum for knife fighting by political insiders. It’s bad for the party and bad for our state.

The good news is: we’ve got a ready-made solution. We should respect the voters and leave this decision to them. The time for party bosses and party insiders to determine who is nominated should end. The primary election voters nominate candidates for positions large and small. Any insinuation that the voters aren’t qualified or knowledgeable enough to make these decisions are disrespectful and flat-out wrong.

The voters should decide who should be nominated from each party for all positions. Our current system gives all the authority to party insiders and politicians who vote at convention. Sometimes those folks represent and reflect the wishes of the voters. Oftentimes, they do not. The time has come to return power to the voters instead of the party bosses. Our state will be better for it.

South Dakota’s election system is, in many ways, a model for the nation. We should be proud of it. In the coming year, we have a chance to take care of our biggest deficiency. I hope we seize the opportunity and continue to put voters first in South Dakota.

Prisons: An Unwanted Need, by Rep. Will Mortenson (R – Fort Pierre). January 9, 2024.

Going to prison is an unimaginable fate for most of us. Prisons are among the most unpleasant places in our world. They deprive inmates of virtually all freedoms. They are incredibly costly – requiring the state to fund lodging, security, meals, and medical care for inmates. We should not send people to prison lightly – it means that person cannot work, cannot take care of their kids, cannot see their friends, and cannot do, say, or dress how they wish. Prison should not be used for retribution and evidence is well-established that longer sentences don’t deter crime. Prison should be reserved only for those who need to be separated from society to protect law abiding citizens from harm.

I believe in law and order. Our laws should be aimed at making the public safer. Crime is deterred by strong, consistent law enforcement presence. That is – people decide whether or not to commit a crime based on their likelihood of getting caught, not whether they’ll go to prison for 15 years or 20. I greatly prefer to focus our criminal justice resources on police officers, sheriff’s deputies, and highway patrolmen. Longer prison sentences don’t make us safer. Law enforcement makes us safer.

Still, prisons are necessary. There are some folks who would harm our society unless they are incarcerated. We need prisons to protect the public.

While prisons are a need, they are an unwanted need. No legislator wants to spend hundreds of millions of dollars building new prisons. No neighbor of the new prison location wants the prison in their neighborhood. Prisons are a prime example of a need, and not a want.

For the third year in a row, the Legislature will be allocating funds to construct an additional women’s prison in Rapid City and a replacement men’s prison near Sioux Falls. The new facilities will be safer for guards and inmates, include additional opportunities for treatment and rehabilitation, and should be more efficient in several respects. Once constructed, the new prisons will house hundreds of additional inmates. Given that our state is growing (around 10% from 2010 to 2020, and still rising) and the Legislature can’t help but create new crimes and increase the length of prison sentences each year, we need additional capacity.

Opposition to building the new men’s prison has sprung up in Lincoln County. I understand the concern. Folks in Pierre will remember when the prison was being cited here. Similar concerns were raised and similar opposition was voiced. The same can be said for prior construction of correction facilities, where lawsuits were filed to try to block them. In each case, the facilities were built. Decades later, the concerns are realized to be overblown. Modern correction facilities are secure, and I have confidence that the Department of Corrections are going to build proper facilities that do not pose a significant risk to the folks in that county.

I will be a strong, vocal supporter of funding construction of the new prison facilities in our state. We have one-time funds available and should avoid taking on state debt (bonds) that would pose an obligation for decades to come and cost hundreds of millions in interest costs. Delaying the projects would likewise cost tens of millions of dollars. These prisons are not a want. Legislators don’t want to have to spend the money. Neighbors don’t want them sited. But the prisons are a need. They fulfill a core obligation of state government, and we need to get them built.

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