Sen. Nesiba

South Dakota Sen. Reynold Nesiba, D-Sioux Falls, testifies on behalf of a bill he sponsored that would require people to wear masks in public buildings statewide. 

Gov. Kristi Noem steadfastly opposes a mask mandate to slow the spread of COVID-19, but four Republicans on the South Dakota Senate Health and Human Services Committee joined the lone Democrat on Wednesday to send an indoor mask requirement to a full floor vote.

If it would become law, the bill would require South Dakotans to wear a face covering inside public buildings when social distancing is not possible. By a vote of 5-2, the measure passed to the Senate floor after debate within the Health and Human Services Committee on Wednesday.

While mask mandates have been passed in areas such as Sioux Falls and Brookings, state officials have refrained from issuing any resolutions requiring masks. Noem has been very vocal about allowing South Dakotans to exercise their personal freedom and not imposing government mandates.

Senate Bill 125, introduced by Sen. Reynold Nesiba, D-Sioux Falls, would require people to wear face coverings that completely cover their mouth and nose in indoor retail businesses or government-owned facilities. In trying to make the bill as accessible as possible, Nesiba said there would be no penalty for non-compliance, and churches would be excluded, as well as a number of other exceptions, such as: children under the age of 5, while eating or drinking, in a dental or medical setting, having an underlying health condition that makes masking difficult, while swimming or playing team sports, and public safety workers on duty. The bill would expire on April 30, meaning it would only be in effect for 90 days.

Nesiba testified that a number of business owners in Sioux Falls and other communities came to him requesting the legislation. Additionally, he said 4,809 South Dakotans signed a petition in support of a mask requirement.

“Public mask wearing is most effective at reducing the spread of the virus when compliance is high. And that’s why I’m bringing this: the science backs this up. We know what works. If people wear masks, socially distance, wash their hands, we can limit this, we can save lives between now and the time when people are fully vaccinated,” Nesiba said.

Proponent testimony came from lobbyists representing the three largest health care providers in the state; Avera, Sanford, and Monument Healths, as well as from representatives for the South Dakota State Medical Association, South Dakota Health Care Association, the Community Health Care Association of the Dakotas, and the South Dakota Nursing Association.

No opposing testimony was presented.

Sister Lynn Marie Welbig testified on behalf of the Presentation Sisters of Aberdeen. She said that operating on a code of personal responsibility has not been working in the state, and that the bill is a “sad but necessary response” to the state’s general failure to adhere to Center for Disease Control and Prevention and State Department of Health guidance, which both suggest that mask wearing mitigates the spread of COVID.

‘We pride ourselves on being good neighbors. We’re always there to help those that are struggling. Well, what is to be said that in the face of a deadly pandemic we choose to, I’d say we’re contrarians, to endanger the lives of others in the name of personal freedom,” Welbig said. “This is not for personal freedom, this is something else. It owes no returns for all the physical, social, and spiritual goods that others provide for us to live and to function well.”

Welbig told the committee she challenges them to “do what needs to be done” and pass the bill.

“Now, if our citizens insist on endangering others by not doing this simple thing of wearing a mask, just like with speed limits and taxes and other things, a responsible Legislature does what you’re sent here to do: You provide a temporary mandate to protect us...from each other,” Welbig said.

Despite overwhelming testimony in support of the bill’s passage, senators on the committee were not convinced that the bill has a place in South Dakota law.

Sen. Blake Curd, R-Sioux Falls, asked Nesiba why there weren’t any representatives from the Department of Health testifying on behalf of the bill and wondered if they supported the legislation. Nesiba said he did not have a chance to discuss the bill directly with Health Secretary Kim Malsam-Rysdon, but he thought if those at the department opposed the measure, they would have sent someone to give testimony.

Later Wednesday on a conference call, Malsam-Rysdon told the Capital Journal that during the Health and Human Services committee hearing, she was in the Joint Appropriations committee. Malsam-Rysdon said the DOH would continue distributing information about mitigation measures, including recommending mask wearing. However, she does not support this legislation.

“Governor Noem and the Department of Health do not support a mandate. It shouldn’t be needed for people to do what they need to do to feel safe,” Malsam-Rysdon said.

Malsam-Rysdon also noted that the state is still one of the top in the country for vaccinations, and that individuals aged 75 and older will be eligible for the vaccine on Feb. 8.

Sen. V.J. Smith, R-Brookings, is the self-proclaimed “best mask wearer under the dome,” but said he was struggling whether to support the bill. He said in Brookings, the city council did “a brave thing” by implementing a mask mandate in the fall, which Smith said was not popular but helped reduce the spread of COVID. He said he thought these decisions would be better followed if they came locally, as citizens in more rural areas would be reluctant to comply with the newest edict from Pierre.

“It’s a struggle with this one, because I like the spirit of it, but I’m concerned about the ‘thou shalts’ coming out of Pierre,” Smith said.

Sen. Erin Tobin, R-Winner, is a nurse practitioner when she is not in the Senate, and she said she was not supportive of a mask mandate.

“I think there’s three levels of compliance: demand, ask, and convince. And I don’t know if demand is the best way to approach compliance,” Tobin said.

Sen. Red Dawn Foster, D-Pine Ridge, said it was “unfortunate” that the state required a mandate in order to do the right thing, which she said was indicative of the failure to effectively communicate the dangers of the pandemic and politicizing it instead.

“We could have just been good neighbors and willingly wore masks. But because it’s been so tainted, it’s now an issue of freedom. And a lot of people in my community have died because of it, who were looking for us for guidance,” Foster said. “I really do believe that if this had just been communicated correctly, we wouldn’t be looking at doing a mandate just to be a good neighbor.”

Tobin noted that “we have good people” in the state who should not be criticized for not wanting to wear a mask, and motioned to move the bill to the 41st day.

“I want to reiterate that the mask decision does not make a person a bad person. But it is a decision, and I will stand by my people that they are good people, and that’s why I voted this way,” Tobin said.

Tobin’s motion was followed by motions from Curd to resist moving the bill and to pass the bill to the Senate floor. Curd said he thought the masking issue was important enough to be debated by the full Senate in his reasoning for moving the legislation forward, although he did not think it would pass the Senate.

“Although it would be easy to put a nail in it and call it good today, I really believe that we need to hear from all the senators, or at least give them the opportunity to weigh in,” Curd said. “I think this matter is of such importance and has risen to such a politicized level across our country and globally that it bears debate in the State Capitol. That’s why we’re here, to have those kinds of discussions and to do the hard work.”

Both Tobin and Curd’s motions failed, so Sen. Mary Duvall, R-Pierre, motioned to pass the bill without recommendation because “we are running out of motions to make and that was the first one that came to my mind.” The motion passed 5-2, with only Tobin and committee chair Sen. Wayne Steinhauer, R-Hartford, voting “no.” Sens. Curd, Duvall, Foster, Smith, and Arthur Rusch, R-Vermillion, all voted to pass the bill on to the Senate floor without resolution.

Nesiba said he was happy with the result and that he was going to ask President Pro Tempore Lee Schoenbeck, R-Watertown, to delay the bill until next week to give residents time to reach out to their senators about the issue.

“I’m really happy with the outcome and it was great to have every single hospital system in the state, the nurses, medical students, and the Presentation Sisters all on our side and to have no opposition testimony in the room. I think that does send a powerful message as well,” Nesiba told the Capital Journal.

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