We’ll See You in Court: South Dakota’s Governor Signs Outrageous Law Restricting Abortion Care


By Brigitte Amiri, Senior Staff Attorney, ACLU Reproductive Freedom Project, & Robert Doody, Executive Director, ACLU of South Dakota

Today, South Dakota’s governor, Dennis Daugaard, signed a bill that creates unprecedented restrictions on access to abortion care. As we’ve blogged before, this law requires women to wait 72 hours between the first counseling session with the doctor and the abortion; it also requires women to first visit “crisis pregnancy centers,” entities that are notorious for providing false and misleading information; and requires doctors to tell the woman of any possible risk factor published in medical and psychological journals since 1972. These new restrictions are on top of the long list of abortion restrictions in South Dakota, and come from a state that has one abortion provider.

If the law were to take effect, the consequences for women in South Dakota would be devastating. Given that Planned Parenthood is the only abortion provider in South Dakota, and they are in Sioux Falls, some women already must travel great distances to see a physician. But under the law, they would have to make to make two trips: one to visit with the doctor in person, and then another 72 hours later for the abortion. In the meantime, they must visit a crisis pregnancy center, which, under the law’s requirements, must be anti-choice.

At the crisis pregnancy center, the woman must tell the staff her private reasons for having the abortion and give the name of her doctor. These intrusions into women’s private lives are outrageous, and they also put physicians at risk for violence and harassment.

And just in case the law was not cruel enough, there is no exception for women who have been raped, who are survivors of incest, or have a wanted pregnancy that is doomed.

So we’re headed to court. We won’t stand for this blatant mistreatment of women and blatantly unconstitutional law. We’ll join Planned Parenthood in court to stop the law in its tracks so no woman is faced with these burdensome, humiliating requirements.

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  • beenthere72

    Go get ‘em!   Good luck!

  • julie-watkins

    Which I found here:

    http://docs.google.com/viewer?a=v&q=cache:4nRhNwlcvhAJ:legis.state.sd.us/sessions/2011/Bills/HB1217HJU.pdf+%22south+dakota%22+HB+1217+certify&hl=en&gl=us&pid=bl&srcid=ADGEESgve06VJTmVLGbbiUgKo6JfJFwp9z43n86cphsbE670FybtD5EBZZ3lFuBC-tTzHjSSwA7hlHrCgvkz9C5Q1elAqkkCFtNHrpJmjueT1BMNNWbclRbgEKa1NTeMxoX5tVwCDQcT&sig=AHIEtbSuuMG-l_gURh3eizLbU5kAEpLbVQ&pli=1

     

    That prior to signing a consent to an abortion, the physician shall first obtain from the pregnant mother, a written statement that she obtained a consultation with a pregnancy help center, which sets forth the name and address of the pregnancy help center, the date and time of the consultation, and the name of the counselor at the pregnancy help center with whom she consulted;

     

    … On the day on which the abortion is scheduled, no physician may take a consent for an abortion nor may the physician perform an abortion, unless the physician has fully complied with the provisions of this Act and first obtains from the pregnant mother, a written, signed statement setting forth all information required by subsection (3)(b) of section 3 of this Act. The written statement signed by the pregnant mother shall be maintained as a permanent part of the pregnant mother’s medical records.

     

    … The Department of Health shall maintain a registry of pregnancy help centers located in the state of South Dakota. The Department shall publish a list of all pregnancy help centers which submit a written request or application to be listed on the state registry of pregnancy help centers. All pregnancy help centers seeking to be listed on the registry shall be so listed without charge, if they submit an affidavit that certifies that:
    … (4) That they do not now refer pregnant women for abortions, and have not referred any pregnant women for an abortion at any time in the three years immediately preceding July 1, 2011;

     

    wouldn’t registering to be put on a list for abortion doctors be “referr[ing] … for an abortion”?

     

    The pregnancy help center is under no obligation to communicate with the abortion provider in any way, and is under no obligation to submit any written or other form of confirmation that the pregnant mother consulted with the pregnancy help center.

     

    … so if the girl/woman who has the abortion later changes her mind (or wants her abortion but wants to prevent that choice for others) she can lie about seeing the CPC, and then go to the police “the doctor didn’t make sure I had counseling! <weep, weep>” ??

    also, the CPC can send documentation to the doctor if they have reason to believe the woman has been coerced, and that has to be kept in her file. (To cause problems later?)

     

    Both of these sections seem problimatical:

     

    “Coercion,” exists if the pregnant mother has a desire to carry her unborn child and give birth, but is induced, influenced, or persuaded to submit to an abortion by another person or persons against her desire. Such inducement, influence, or persuasion may be by use of, or threat of, force, or may be by pressure or intimidation effected through psychological means, particularly by a person who has a relationship with the pregnant mother that gives that person influence over the pregnant mother.

     

    If the trier of fact determines that the abortion was the result of coercion, and it is determined that if the physician acted prudently, the physician would have learned of the coercion, there is a nonrebuttable presumption that the mother would not have consented to the abortion if the physician had complied with the provisions of this Act;

  • ldan

    Given their history of lying, will CPCs actually give women correct names?

    written statement that she obtained a consultation with a pregnancy help center, which sets forth the name and address of the pregnancy help center, the date and time of the consultation, and the name of the counselor at the pregnancy help center with whom she consulted

    Then when someone pulls out the statement the CPC says they have nobody by that name there.

     

    There is no provision for any record-keeping at the CPCs at all, for that matter. There is no requirement for them to meet HIIPA requirements and restrictions, which seems a gross violation of medical rights when you are requiring women to go to these places and give them personal information before receiving a medical procedure. There is no requirement for the CPCs to communicate with abortion providers. The bill is rife with holes designed to make it impossible to provide abortions without ending up either fined for not being in compliance with this law, or being tied up in constant legal battles to prove compliance.

  • julie-watkins

    What CPC volunteer or staff would want to admit to not changing an “abortion minded” woman’s mind?

    There is this:

    Other than forwarding such documents to the abortion physician, no information obtained by the pregnancy help center from the pregnant mother may be released without the written signed consent of the pregnant mother or unless the release is in accordance with federal, state, or local law.

    But I don’t know how well this would be enforced, or what recourse.

  • arekushieru

    … so if the girl/woman who has the abortion later changes her mind (or wants her abortion but wants to prevent that choice for others) she can lie about seeing the CPC, and then go to the police “the doctor didn’t make sure I had counseling! <weep, weep>” ??

    I rather thought that that meant she wouldn’t be able to get one….  The lack of compulsion for the burden of proof to rest on CPCs shoulders, as well, along with the fact that no such coercion is considered when a woman continues a pregnancy, points out the hypocrisy of the Republican government, in general, as usual. 

    And wtf is up with them declaring that a pregnant woman is a mother??? How is it that Republicans who failed Lawmaking 101, were able to get elected into such positions???

  • ldan

    If the CPC does send on a note to the provider claiming that they believe the woman is being coerced, what are the chances that she’d be able to get an abortion at all. Yeah, it’s all pretty much stacked.

  • julie-watkins

    Here’s what the law says (if this is what’s passed, not a preliminary version):

    The physician shall make the physician’s own independent determination whether or not a pregnant mother’s consent to have an abortion is voluntary, uncoerced, and informed before having the pregnant mother sign a consent to an abortion. The physician shall review and consider any information provided by the pregnancy help center as one source of information, which in no way binds the physician, who shall make an independent determination consistent with the provisions of this Act, the common law requirements, and accepted medical standards.

    But with the definition of “coerced” I don’t know if “My independent determination is that the CPC counsellor impression wasn’t accurate” would work.

  • arekushieru

    Actually, I was referring to the part about needing something signed by the CPC, but the CPC doesn’t have to provide the woman with said signature. If they decide not to, the woman can’t get an abortion. 

  • julie-watkins

    But the woman has to certify to the doctor that she has been to a CPC, the time, where & with who.

    The CPC has the *option* of contacting the Doctor saying the CPC counsellor suspects the woman is being coerced. The Doctor needs to take that report into consideration, but the Doctor still makes her/his own decision on if the woman is being coerced.

    Or maybe I’m looking at an earlier version.

  • arekushieru

    This:

    a written, signed statement setting forth all information required by subsection (3)(b) of section 3 of this Act.

    and this:

    and is under no obligation to submit any written or other form of confirmation that the pregnant mother consulted with the pregnancy help center.

    are why I’m saying what I am.

  • julie-watkins

     first obtains from the pregnant mother, a written, signed statement setting forth all information required by subsection (3)(b) of section 3 of this Act.

    (emphasis added)

    In a strict reading, an abortion isn’t going to be denied because CPC refusing to sign a certification.

    The doctor may decide it’s too risky — the legislators obviously hope this — but it’s on the doctor, not the CPC.

  • arekushieru

    Unfortunately, it seems like you are looking at the two parts separately, while I’m looking at them as two smaller pictures of the larger whole.  They fail to distinguish between the written statement from the CPC and the one from the woman, which leads me to believe they are one and the same.  They also fail to distinguish who is and who isn’t the signatory.  ‘The written statement’ in the next sentence was already defined in the above (previous) statement as a written, signed statement, so, in a strict reading that sentence could be regarded as either a redundant statement or as having a requirement of two signatories.  

    Besides, if the statement is signed by someone else, the physician could still easily ‘obtain’ it from the woman. 

  • ldan

    I read the first as a written and signed statement written and signed by the patient.

     

    Which means she needs to go in with a checklist, take down the name, address, etc. of the place, the name of the person ‘counseling’ her, etc. Then write that all up for their doctor.

     

    Given that, from what I could tell, the onus is on the provider to verify that counseling took place (they’re the ones getting fined), it’s a huge barrier when the only verification you have is something written up by the woman herself. Is the doctor supposed to call the CPC for verification (that they don’t have to give) of that written note, or is simply having it enough? With that kind of looseness in the law, I can’t see it making it out of court. At least, I reallllly hope not.

  • ldan

    Pretty much. With this and the lack of clarity on how they’re supposed to prove that they verified that women received the mandated ‘counseling’, I can’t see many doctors willing to risk the fines. Not when it’s super easy for someone to set them up.

  • ldan

    It also doesn’t stop them from using the information to send them disgusting cards every year to remind them of their abortion as some have done. After all, that isn’t a release of information to anyone but the woman, right?

  • julie-watkins

    I hadn’t heard about that; doesn’t surprise me.

  • julie-watkins

    If they decide not to, the woman can’t get an abortion.

    “can’t” is not the same as “it’s too risking so the doctor won’t”

  • arekushieru

    And?  My point still stands….  So, I’m still having difficulty seeing this as anything other than confusion.  

  • crowepps

    The way the law is written the woman has to provide the CPC with the name of the SPECIFIC DOCTOR who is going to do her procedure.  That means she has to have ALREADY gone to the abortion clinic BEFORE she makes the appointment with the CPC.

     

    She cannot have the abortion until AFTER her appointment with the CPC.

     

    The CPC is under no obligation to give her a speedy appointment.  Remember, they have NO DUTY or LIABILITY towards her.  They could tell her no counselors are available until next month.  In which case she either doesn’t have the abortion or she lies to the doctor and says she went.

     

    Personally, I think the law is confusing and poorly written because they don’t plan for this complicated scenario to ever actually happen.  They just want to make things complicated enough to shut down services, so the the fanatics and ideologues can feel all virtuous and self-righteous about how ‘no abortions happen in OUR state’.  Frankly, no matter what happens with this particular law, I think women who are smart should go out of state for their medical care, then look around for jobs and never come back.  Why live in a state where it’s clear the state government and your fellow citizens consider you breeding stock, liable for culling if at risk from pregnancy complications? 

  • saltyc

    I can’t even see that they actually expect this law to stand, but then why pass it.? Is it to use as a national-stage propaganda tool? As in: “Those cold-hearted pro-aborts won’t even allow for a law that only seeks to take away coercion, and give “mothers” a compassionate, non-judgmental ear from someone who has no vested interest in giving her an abortion. Enter Jane Doe: My cruel husband pressured me to abort just because our baby was a girl, but thank god I spoke to the nice lady at the CPC who informed me that it was my right to let her live!!!”

     

    Also, the coercion defenition is bullshit. If a woman “desired” to have a baby with a man who, turns out, doesn’t love her and will not stay to raise a child, and tells her so, and for that reason she decides to abort is that coercion? I don’t think so, it’s honesty.

     

     I think women who are smart should go out of state for their medical care, then look around for jobs and never come back.  Why live in a state where it’s clear the state government and your fellow citizens consider you breeding stock, liable for culling if at risk from pregnancy complications? 

    Harsh,  but true.  (Not to deny compassion for women who can’t, I still got a kick out of this.)

  • julie-watkins

    But the woman has to visit a CPC.

    The legislation was specifically written so it’s a woman not going to the CPC or the doctor not taking the risk as the reason why an abortion doesn’t happen. The CPC won’t take any direct (provable) action to block a woman’s choice, though they can express concern to a doctor.

    Either the rule stays & there’s more barriers to abortion, or ACLU wins the lawsuit and the CPCs and complain about how they were lied about. Gag.

  • julie-watkins

    will at least get clarity, if not getting the law thrown out.

  • ldan

    It may be urban legend since I can’t remember where I saw the story. A card around what would have been the due date that was a typical ‘congratulations’ new baby card, only with red smeared on it and typical anti-spew about murdering her baby. And then yearly cards for a few years with ‘happy birthday’ and simliar red paint and shaming messages.

     

    Given what has been documented coming from CPCs, it isn’t as if this is at all hard to believe. And again, given what has been documented, I find a law that gives them greater access to anyone’s personal and medical information disgusting.

  • crowepps
  • plume-assassine

    Planned Parenthood and the ACLU will win. This law is clearly unconstitutional (violating the establishment clause of the first amendment) and also blatantly violates the privacy rule of HIPPA since CPCs are non-medical, non-licensed centers known for unethical behavior.

  • ldan

    Thanks, now at least I can be sure I didn’t imagine seeing it. Anonymous stories on the internet aren’t something I’d take as definitely true. But at least now I remember where it was from.

  • julie-watkins

    Lots of useful examples there, even if anecdotal.