South Dakota Raises Abortion Hurdles

As the Associated Press reports, a South Dakota law may legally be enforced requiring doctors to tell woman that an abortion “will terminate the life of a whole, separate, unique, living human being.” The AP elsewhere notes that the state’s attorney general now plans to enforce the law. U.S. District Judge Karen Schreier still must issue a ruling on the law; the debate was whether it could be enforced while under challenge.

What I take to be the relevant statute is reproduced below.

Obviously the law is intended to create onerous restrictions on abortion and come between doctors and their patients. The law micromanages doctors and violates their rights of contract and expression. The law also treats women as mindless dolts who must be parented by the state if they are to make “correct” decisions. Obviously the law is biased toward forcing doctors to provide propaganda against abortion, outside the context of the overall best decision for the woman, that presumably could generate endless litigation against doctors who provide the “wrong” sort of information.

Most importantly, the law deceptively claims that a fetus is “a… living human being” in the sense of being a person. The law thus relies on a gross equivocation between “human” in the sense of containing human DNA, as every cell in our bodies do, and “human” in the sense of being a physically separate and independent human person, which a fetus most certainly is not.

34-23A-10.1. (Delay in implementation or finding of unconstitutionality, see note at end of section) Voluntary and informed consent required–Medical emergency exception–Information provided. No abortion may be performed unless the physician first obtains a voluntary and informed written consent of the pregnant woman upon whom the physician intends to perform the abortion, unless the physician determines that obtaining an informed consent is impossible due to a medical emergency and further determines that delaying in performing the procedure until an informed consent can be obtained from the pregnant woman or her next of kin in accordance with chapter 34- 12C is impossible due to the medical emergency, which determinations shall then be documented in the medical records of the patient. A consent to an abortion is not voluntary and informed, unless, in addition to any other information that must be disclosed under the common law doctrine, the physician provides that pregnant woman with the following information:
(1) A statement in writing providing the following information:
(a) The name of the physician who will perform the abortion;
(b) That the abortion will terminate the life of a whole, separate, unique, living human being;
(c) That the pregnant woman has an existing relationship with that unborn human being and that the relationship enjoys protection under the United States Constitution and under the laws of South Dakota;
(d) That by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated;
(e) A description of all known medical risks of the procedure and statistically significant risk factors to which the pregnant woman would be subjected, including:
(i) Depression and related psychological distress;
(ii) Increased risk of suicide ideation and suicide;
(iii) A statement setting forth an accurate rate of deaths due to abortions, including all deaths in which the abortion procedure was a substantial contributing factor;
(iv) All other known medical risks to the physical health of the woman, including the risk of infection, hemorrhage, danger to subsequent pregnancies, and infertility;
(f) The probable gestational age of the unborn child at the time the abortion is to be performed, and a scientifically accurate statement describing the development of the unborn child at that age; and
(g) The statistically significant medical risks associated with carrying her child to term compared to undergoing an induced abortion.
The disclosures set forth above shall be provided to the pregnant woman in writing and in person no later than two hours before the procedure is to be performed. The physician shall ensure that the pregnant woman signs each page of the written disclosure with the certification that she has read and understands all of the disclosures, prior to the patient signing a consent for the procedure. If the pregnant woman asks for a clarification or explanation of any particular disclosure, or asks any other question about a matter of significance to her, the explanation or answer shall be made in writing and be given to the pregnant woman before signing a consent for the procedure and shall be made part of the permanent medical record of the patient;
(2) A statement by telephone or in person, by the physician who is to perform the abortion, or by the referring physician, or by an agent of both, at least twenty-four hours before the abortion, providing the following information:
(a) That medical assistance benefits may be available for prenatal care, childbirth, and
neonatal care;
(b) That the father of the unborn child is legally responsible to provide financial support for her child following birth, and that this legal obligation of the father exists in all instances, even in instances in which the father has offered to pay for the abortion;
(c) The name, address, and telephone number of a pregnancy help center in reasonable proximity of the abortion facility where the abortion will be performed; and
(d) That she has a right to review all of the material and information described in § 34- 23A-1, §§ 34-23A-1.2 to 34-23A-1.7, inclusive, § 34-23A-10.1, and § 34-23A- 10.3, as well as the printed materials described in § 34-23A-10.3, and the website described in § 34-23A-10.4. The physician or the physician’s agent shall inform the pregnant woman, orally or in writing, that the materials have been provided by the State of South Dakota at no charge to the pregnant woman. If the pregnant woman indicates, at any time, that she wants to review any of the materials described, such disclosures shall be either given to her at least twenty-four hours before the abortion or mailed to her at least seventy-two hours before the abortion by certified mail, restricted delivery to addressee, which means the postal employee can only deliver the mail to the addressee;
Prior to the pregnant woman signing a consent to the abortion, she shall sign a written statement that indicates that the requirements of this section have been complied with. Prior to the performance of the abortion, the physician who is to perform the abortion shall receive a copy of the written disclosure documents required by this section, and shall certify in writing that all of the information described in those subdivisions has been provided to the pregnant woman, that the physician is, to the best of his or her ability, satisfied that the pregnant woman has read the materials which are required to be disclosed, and that the physician believes she understands the information imparted. (SL 2005, ch 186, §§ 10 and 11 provide: “Section 10. If any court of law enjoins, suspends, or delays the implementation of the provisions of section 7 of this Act, the provisions of § 34-23A-10.1, as of June 30, 2005, are effective during such injunction, suspension, or delayed implementation.” “Section 11. If any court of law finds any provisions of section 7 of this Act to be unconstitutional, the other provisions of section 7 are severable. If any court of law finds the provisions of section 7 of this Act to be entirely or substantially unconstitutional, the provisions of § 34-23A-10.1, as of June 30, 2005, are immediately reeffective.”)
Source: SL 1980, ch 245, § 1; SL 1993, ch 249, § 4; SL 2003, ch 185, § 2; SL 2005, ch 186, § 7.