South Dakota Banning Abortion Without Banning Abortion?

VIDEO: South Dakota Attempts De-facto Ban on Abortion

Sarah Stoesz, president and CEO of Planned Parenthood Minnesota, North Dakota and South Dakota talks with Rachel Maddow about a new anti-abortion law in South Dakota that makes it essentially impossible for a woman to exercise her legal right to have an abortion.

Last week at the American Prospect, Scott Lemieux published a lengthy debunking of the myth that the Supreme Court decision that controls abortion rights in the U.S. is Roe v. Wade.  In fact, Roe was supplanted in 1992 by Casey v. Planned Parenthood, a fact often treated as trivia that only matters to political nerds, but which has profound implications.  Lemieux explains:

In the Casey decision, the court upheld Roe but changed the precedent in two important ways: It made viability the point at which the states could prohibit abortion, and it allowed restrictions on abortion rights as long as they didn’t place an undue burden on the mother.

In this, the Court invited the blizzard of anti-abortion regulations that make it difficult, if not impossible, for many women to obtain abortions today. Casey is remembered because the Court declined to overrule Roe, but in some respects, it was really a victory for people who want the state and federal governments to restrict abortion access.

He ends the piece by saying, “None of this is to say that there isn’t a major difference between the Casey regime and overruling Roe entirely.”  This is true, but it’s worth noting that the difference is shrinking every day, to the point where there won’t be any difference at all.  Casey didn’t overturn Roe immediately, but it kicked off a 20-year process that has resulted now, in 2011, in what appears to be a functional overturn of Roe.  While abortion providers and patients have kept on keeping on in the face of ever-tightening restrictions—demonstrating the power of the demand for this service—South Dakota may have just managed to ban abortion without actually banning abortion outright.  They did it by pushing the “undue burden” restriction way past the “undue” part and into the “impossible” territory. 

How did South Dakota do it?  The new law requires women seeking abortion to speak to the doctor, then wait 72 hours, then get counseled at an anti-choice propaganda station called a “crisis pregnancy center,” only after which would she be allowed to obtain an abortion. This law received quite a bit of attention for overt misogyny inherent in the implication that women are too stupid to be aware of what they’re asking for when they seek abortion, or that women are so ignorant and incurious that they can’t be expected to have considered anti-choice arguments unless forced.  But it’s looking like this law may do more than that, and may actually make abortion impossible to get in South Dakota. 

This works in two ways.  Right away, it was clear that the 72-hour waiting period was an attempt to force the sole abortion provider in the state, a Planned Parenthood in Sioux Falls, to drop the service.  The doctor that performs abortions flies in to provide the service, and this requirement is obviously intended to push out any doctor who doesn’t work full time at the clinic by making the travel requirements onerous. 

The “counseling” requirement seemed more condescending than truly burdensome at first, though it is true that many women seeking abortion really don’t have the flexible schedule to work in a few hours to be hectored by anti-choicers before obtaining their abortion, which pushes this requirement from being irritating and sexist to being truly an obstacle.  But recent news indicates that something more devious is likely going on. As Robin Marty reported last week, not a single crisis pregnancy center has agreed to counsel patients seeking abortion so that those patients can fill their requirements to get their abortions.  Not even the centers that lobbied to get the requirement pushed through.  Without centers willing to say they saw the patients seeking abortion, patients could be caught in a red tape nightmare that makes getting abortions impossible.

It’s always possible that this is a paperwork oversight, but experience tells us that anti-choicers don’t play by the normal ethical rules of fair play (which comes with the territory when you’re organized around the immoral desire to force unwilling women to bear children), so we have to consider the alternative, that this was the plan all along.  At the end of the day, the “counseling” requirement is using bureaucratic nonsense to create a situation where women who want abortions have to get consent from people who think that every woman should be forced to have a many children as possible, whether she likes it or not.  Of course they’re going to refuse to give that consent.  Through a paperwork shuffle, the state of South Dakota has given the power to control abortion access to anti-choicers, and their choice—surprise, surprise—is a ban.

This should infuriate anyone who values the rule of law, even if they’re not invested in reproductive rights.  (Though I’m hard pressed to imagine what such a person would look like.)  To be clear, anti-choicers in South Dakota had to ban abortion through duplicity not just because of the Supreme Court, but also in order to get around the will of the voters of the state, who rejected an abortion ban in a statewide vote in 2006.  And since anti-choicers can’t get the voters to back a ban on abortion and give the police the authority to enforce it, instead they’re going to quietly ban abortion and give religious fundamentalists like Leslee Unruh the power to enforce it.

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  • anna-malena

    Thank you for writing about this!

    I currently live in South Dakota and have worked in the field of women’s health for about four years. This new law certainly will make having an abortion in South Dakota virtually impossible. There are many reasons why this bill will do so, besides the ones you are describing.

    First of all, there is only one clinic in the state that provides this service, as you mentioned. This clinic is on the far south eastern side of the state, hundreds of miles from other communities. A seventy-two hour waiting period, combined with the requirement that the women make one appointment with the doctor to discuss the abortion, one appointment with a crisis pregnancy center, and finally, one more appointment to actually have the abortion procedure will make it incredibly difficult for a woman to travel halfway across the state, miss work, find childcare, find lodging in Sioux Falls, etc., in order to obtain her abortion.

    Secondly, it is my understanding that Planned Parenthood in Sioux Falls offers abortion services only once a week, as the doctor must fly in from Minnesota to work. Unless other arrangements can be made, this means that a woman seeking an abortion will not wait only 72 hours, but will actually wait one full week until the doctor is available again. This is a significant amount of time to wait during the first trimester of pregnancy when considering an abortion, especially if the woman is nearing week 12 or 13.

    Third, not only have the crisis pregnancy centers now refused to register with the state to comply with the new law, they also have a loophole within the law if they do register. Here is the process a woman must go through to obtain an abortion:

    1) The woman must visit the doctor to speak to him/her about the abortion.

    2) The doctor must send the woman away for 72 hours, during which time she must have an appointment with a crisis pregnancy center “that one of its prinicipal missions is to educate, counsel, and otherwise assist women to help them maintain their relationship with their unborn children…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” (HB1217, p. 6).

    3) The pregnancy center must then provide the woman with a written form stating that she visited the center, which she will give to her doctor. She can only have the procedure done if she provides the written form. However, “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” (HB1217, p.7). Provision of the required form is on a voluntary basis. Why would these centers provide the form if their primary mission is to prevent women from having abortions?

    In 2006, as you mentioned, the SD legislature tried to pass a bill to ban all abortions in the state outright. This was referred to a vote after a petition drive that garnered thousands of signatures. The ban was soundly defeated, and two years later, in 2008, the legislature tried again, this time with exceptions for rape and incest (they were certain this is why it did not pass the first time). Again, it was soundly defeated by the people of our state. Now our legislators, who apparently have an ideological agenda, have gone behind our backs and passed a law that they promoted as “an opportunity for women to have counseling before having abortions,” and “a way to keep women from being coerced into having an abortion.”

    Here is a link to an article from the Rapid City Journal regarding the crisis pregnancy centers’ reluctance to register with the state:

    Again, thank you for writing about this topic.

  • rachel-larris

    Essentially what will happen is when state laws become so onerous that it simply becomes a better option to travel to another state to obtain an abortion, that’s what the women of SD will do. They will go to ND, or more likely an expensive plane ticket to Minneapolis. They will shell out thousands they can’t really afford (even the middle-class ones) because they know the other option, continuing the pregancy, will be even more expensive.

    Also expect a rise of “dead babies after giving birth in bathrooms” stories to bubble up.

  • crowepps

    The suicide rate for teenage girls and women will start to climb as well.  As detailed in the excellent PBS program, “Depression: On The Edge”, Pierre, South Dakota had the highest per capita rate of teen suicide in the United States as recently as 1999.  It was overtaken in the misery sweepstakes by Utah, but I’m sure if they continue to promote laws reducing women to livestock, suitable only for riding or breeding, and emphasize that ‘society’ considers females to be baby vending machines (brain not required), in no time at all South Dakota will once again be Number 1 among places women are dying to escape.

  • julie-watkins

    of a young person telling a friend of suicidal thoughts & the youth was getting help. It didn’t surprise me that the young person was 1) a girl and 2) from an evangelical family. Possibly there were other issues as well, but I couldn’t help thinking: her church (which her parents chose as adults but she was born into) was probably more of her than she might want to give and that church probably didn’t value her as much as she deserved.

  • arekushieru

    Has anyone read this article?  For a usually sane breath of fresh air amongst a variety of dirt-wallowing right wingers, she fails, severely, to meet the mark this time.  She definitely fails to consider that not everyone experiences stress disorders in the same way or manner….

  • eliza

    First, thanks for this column. I’m really hungry for info about the status and significance of the new law, so the column is most appreciated.

    I hadn’t read about the Casey vs Planned Parenthood decision recently. It’s very enlightening to consider it in light of the fiasco the SD legislature and governor have created for that state’s women.

    Please, can we have a follow-up article specifically exploring Casey’s proviso allowing restrictions on abortion rights as long as they don’t place an “undue burden” on the mother.

    Seems to me that making women wait 72 hours is an undue burden — especially in a big state with only one provider. Forcing women to visit a pregnancy counseling center whether they want to or not is coersion — another undue burden. And denying them abortions because no centers have registered is beyond an undue burden.

    Have there been court challenges that have defined what the court considers undue burdens? Bet there are attorneys for NARAL, Planned Parenthood, ACLU who could weigh in on this and the possibility SD draconian law can be overturned because of the burdens it imposes.

    Meanwhile, please join me in keeping funding flowing to prochoice organizations so they can fight the best possible fight.

  • kj

    I agree that S.D.’s laws likely impose an undue burden, especially since they require ‘counseling’ from unlicensed, non-medical persons.  CPCs are famous for lying to women.  I did an investigation of the one in my town and the list of things they lie about is long.  They lie about how abortion causes breast cancer, depression and suicide.  They lie about fetal pain.  They lie about support services.  They are basically lying liers who lie.  Real counselors are required to keep their opinions out of their practice.  I grit my teeth every time I hear someone call a CPC a source for ‘counseling.’  What they do is not counseling. 

  • jennifer-starr

    Thanks for refreshing my memory about Casey v. Planned Parenthood–I was in my freshman year of college when that decision was handed down. Hopefully this law will be struck down by the courts because it does place an undue burden on the woman. But who knows–things are truly insane at the moment. 

  • eatgoodbread

    Didn’t Franz Kafka already write a book about this?