South Dakota Abortion Ban in Dead Heat

By Emily Douglas, RH Reality Check. Posted October 31, 2008.

In 2006, South Dakotans voted 56 to 44 percent against a law passed by the state legislature which would have outlawed all abortion in the state.  But polling done by a South Dakota newspaper after the ban was defeated found that an abortion ban with exceptions would likely pass in the state.  "They said we'd gone too far, that we had to have exceptions for rape and incest," said Leslee Unruh, of Yes for Life, the group pushing the ban.  So, when anti-choice activists regrouped for another round, they wrote a different law.  Now, in 2008, we have Initiated Measure 11, which would outlaw most abortions, with narrow exceptions for reported rape, incest, and "serious risk of a substantial and irreversible impairment of the functioning of a major bodily organ or system of the pregnant woman."

South Dakota Campaign for Healthy Families, the group opposing the ban, says these are merely "so-called" exceptions.  Why?  On the health exception, "'substantial and irreversible harm' is hardly a black-and-white issue," Dr. Suzanne Poppema has written for RH Reality Check. "Imagine a woman, recently diagnosed with cancer, who cannot begin chemotherapy while she is pregnant. Would she be forced to continue her pregnancy to term regardless of the risks? Who decides? If medical experts cannot agree on the precise risk to a woman's health, they may opt not to act at all rather than risk criminal penalties," Dr. Poppema writes.  Indeed, a leaked memo from a South Dakota hospital, Stanford Health, told physicians -- who, at this facility, only provide medically necessary abortions -- that the ban would nonetheless have significant impacts on their medical practice. Dr. Marvin Buehner, a Rapid City doctor specializing in high-risk pregancies, told the Washington Post, "If there's a risk of a Class 4 felony if I don't meet the ambiguous standard of 'serious risk of substantial and irreversible impairment of a major bodily organ or system,' there's no way I would consider doing an abortion for health reasons."

The rape and incest exceptions are narrower than they might at first sound, too.  Before a doctor could perform an abortion after a rape or incest, the woman must consent to DNA sampling from herself and her fetus for forensic analysis.  The doctor must secure DNA samples and arrange for their transfer to law enforcement.

Tiffany Campbell, a spokeswoman for South Dakota Campaign for Healthy Families, also says her own son's life would have been lost under the ban. In utero, Campbell's twins suffered from "twin-to-twin transmission" syndrome, in which twins unequally share blood circulation.  Had one twin not been terminated, both would have likely died.  Termination to save a sibling's life wouldn't be permissible under the ban.

But for some anti-choice organizations, the ban doesn't go far enough. The American Life League has joined South Dakota Right to Life in opposing the measure, on the grounds that it permits some abortions.  Dr. Allen Unruh, also of Vote Yes for Life, told NPR, "Ideally, I'd like to save every child possible, but we don't live in that type of world right now. So to me, it's kind of like if the Titanic is sinking, would you say, well, let's not lower the lifeboats because we can't save them all? Let's save every person we can."

But the inadequate exceptions aren't the only reasons South Dakotans oppose the ban, says ACLU Reproductive Freedom Project State Advocacy Director Sondra Goldschein.  Rather, Goldschein says, "There is not a lot of focus on whether there are exceptions or whether there aren't. This is a place where they do not want the government."

If the ban passes, the law will be fought in court and will present a challenge to Roe at the Supreme Court.

The ban is currently in a dead heat. Forty-four percent of 800 registered voters surveyed said they would vote in favor of Initiated Measure 11, and an equal number said they would vote against. Twelve percent remain undecided.  Of those who planned to vote for the measure, 56 percent said the exceptions weren't a factor, but 37 percent said they were.

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Emily Douglas is the Assistant Editor at RH Reality Check.

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