The Proposed South Dakota Abortion Ban
A Voter’s Guide to Initiated Measure 11 and State Abortion Law
Oct 28, 2008
The text of Initiated Measure Eleven is confusing, but essentially the law would ban almost all abortions in the state of South Dakota. If the measure passes, it would be subject to immediate legal challenge, so the cost to taxpayers of defending the measure is one consideration for voters. Those opposed to the measure emphasize its vague language, the amount of government intrusion inherent in such a law, and the fact that South Dakota already has the nation’s most restrictive abortion laws. Those in favor prefer an absolute ban on abortion and are prepared to defend it in court.
What the Abortion Ban Means
Section Two of the proposed measure says that, unless an exception applies, “any person who knowingly performs any procedure upon a pregnant woman, or uses any instrument upon a pregnant woman, or administers any medicine or drug or substance or device to a pregnant woman, or prescribes or procures or sells any medicine or drug or substance or device for use by a pregnant woman, or employs any other means, with the intent of causing the termination of the life of an unborn human being, is guilty of performing an illegal abortion, which is a Class 4 felony.”
In plain English, this means that abortions would be illegal in South Dakota unless they fall under a narrow list of exceptions. The doctor performing the abortion would be guilty of a felony, as would anyone else who performs abortions or sells mifepristone, the drug that induces abortion, to a pregnant woman.
The reasons for this measure as stated in the law are that abortion causes “significant psychological and physical health risks” and there is not normally a full doctor-patient relationship in place to properly assess these risks, that the woman’s rights include “fundamental right of the pregnant woman to her relationship with her child,” that the state has a duty to protect the life of an unborn child, and that the state has a history of doing so. Those in favor of the bill cite these reasons as justification for passage. The United States Supreme Court has not found that these interests override the interest in the health of the mother or her right to choose to terminate a pregnancy, and so the law will likely be challenged under the United States Constitution if passed.
Exceptions to the Abortion Ban
The law does include a few exceptions. A physician who deems that the woman’s life is in danger may terminate the pregnancy as long as he or she makes the decision according to standards of medical practice. There is also an exception if the physician deems that the woman’s health is in danger, but only in the most severe cases. There is no exception for a case where the fetus will not survive the pregnancy or will be born severely deformed, however.
There is an exception for a pregnancy that results from rape or incest as long as the abortion is performed within twenty weeks of the woman’s last menstrual period and the physician reports the rape or incest to the state attorney or law enforcement. The incest exception only applies to women under the age of eighteen. Under this exception, the woman must also submit a DNA sample and allow a DNA sample to be collected from the fetus. The physician must keep all information in the woman’s permanent medical records and the Department of Health may request these records with only the woman’s name redacted.
The proposed law also requires that the physician take reasonable medical efforts in any abortion to preserve the life of the fetus. It does not, however, allow charges to be brought against a woman on whom an illegal abortion is performed or against a woman who reports rape or incest for the sexual acts reported.
References:
South Dakota Initiated Measure Eleven
