Defending South Dakota's latest law restricting abortion could cost the state as much as $4 million.
Or it could cost the state nothing.
Organizations opposed to abortion say they plan to raise money needed to pay South Dakota's litigation costs against Planned Parenthood and the American Civil Liberties Union.
"There's money that is going to be available," said Rep. Roger Hunt, R-Brandon, the prime sponsor of the bill that imposes more restrictions on women seeking abortions.
One potential source for the money is the state's Life Protection Subfund, a special fund devoted to supporting South Dakota's abortion laws in court.
That fund was created in 2005 and immediately received about $13,000 in donations -- and then sat dormant for years until the past few months. With new abortion laws debated and passed in the Legislature, another $5,000 has been donated so far in 2011.
But $19,335.04 -- the fund's balance on Wednesday -- won't come close to paying for a lawsuit.
In a worst case scenario, in which the state defends the legislation all the way to the U.S. Supreme Court and then loses, the state's legal costs could range from $1.7 million to $4.1 million, state Attorney General Marty Jackley estimates.
The biggest chunk of that cost would only apply if South Dakota loses and is required to pay the attorney fees for Planned Parenthood and the ACLU. Jackley said those costs could run between $1 million and $1.75 million.
The state's attorneys' fees could cost between $400,000 and $800,000. If the state must contract with outside lawyers, the cost could go as high as $1.75 million. But Jackley said the state is likely to keep the litigation with its staff attorneys, possibly the same two lawyers who have been defending South Dakota's 2005 abortion law in court.
Expenses related to securing testimony from expert witnesses could add $250,000 to $500,000, and other expenses are an estimated $100,000.
Defenders of HB1217 said their movement will be able to secure donations to the Life Protection Subfund to pay those costs.
"Any time you're talking about litigation like this, you know there's going to be a need for funding," said Chris Hupke, president of the South Dakota Family Policy Council. "We've proven in the past we have the ability to raise those funds."
In 2006, the ballot committee defending the state's abortion ban in a public referendum raised almost $3 million. In 2008, that same committee, VoteYesForLife.com, raised about $1.2 million in support of an initiated measure banning abortion.
There is no cap on donations to the Life Protection Subfund, raising the possibility of large donations from wealthy individuals or organizations.
Also unlike donations to political campaigns, money given to the Life Protection Subfund can remain anonymous -- though so far, most donors have disclosed their names.
"If I got a notation in an envelope that sent me $400 cash, (saying) ‘I'm making this donation on behalf of the Life Protection Subfund,' I would have no way of knowing where it came from and I would do what it's directed me to do," said Paul Kinsman, commissioner of the state Bureau of Administration, which oversees the subfund.
The 2006 abortion referendum did see an anonymous large-dollar donation to the anti-abortion cause, which became the subject of a court case and led to a tightening of South Dakota's campaign finance laws.
Supporters of HB1217 have another option to help lower the cost of defending the law in court - providing non-monetary support.
The Life Protection Subfund hasn't contributed any money toward defending the 2005 abortion law in court. In fact, no money has been taken out of the fund since it was created.
But the state's costs in that lawsuit have been low because the Alpha Center and other groups, as participants in the lawsuit, paid the costs for many of the experts testifying on behalf of the state.
If that happens again, Jackley said, the $250,000 to $500,000 he estimated in expert fees "would be reduced."
The state has spent only about $50,000 on expert fees in the 2005 lawsuit, Jackley said, despite that lawsuit involving large amounts of expert testimony.
The plaintiffs suing the state will be funded entirely by private donations, spokespeople for Planned Parenthood and the ACLU said.
"Our members give us money that we use to do litigation around the country," said Sam Ellingson of the ACLU of South Dakota.
Both the ACLU and Planned Parenthood will use salaried attorneys from their national offices on the case.
"We are fortunate to have Planned Parenthood national attorneys on staff that would take the lead in handling the litigation," said Kathi Di Nicola of Planned Parenthood of Minnesota, North Dakota and South Dakota, the lead plaintiff.
Both Planned Parenthood and the Alpha Center have also relied on pro bono attorneys in their court cases involving South Dakota's abortion laws.
Contact David Montgomery at 394-8329 or email@example.com