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In South Dakota Down syndrome abortion ban, questions of tests and timing

While the Down syndrome abortion ban proposal fit with South Dakota Gov. Kristi Noem's view of abortions, and is likely to further burnish her credentials in conservative circles, a Forum News Service analysis indicates a lack of data, and uncertain testing, makes it very hard to say how the ban would affect state residents.

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South Dakota Gov. Kristi Noem holds Valentina Duffy, a child with Downs syndrome, at the Capitol in Pierre on Jan. 12, in a photo posted by Noem to her official Twitter account. Submitted / Twitter
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SIOUX FALLS, S.D. — South Dakota Gov. Kristi Noem, an ardent abortion foe, is proposing a legislative ban on abortions based in a fetal diagnosis of Down syndrome.

While the proposal fit with Noem's view of abortions, and is likely to further burnish her credentials in conservative circles, a Forum News Service analysis indicates a lack of data, and uncertain testing, makes it very hard to say how the ban would affect state residents.

Still, Noem is pressing on with the legislation, which would implement a class 6 criminal penalty — up to 2 years in prison and a $4,000 fine — if a doctor were knowingly perform an abortion due to Down syndrome diagnosis.

"At times people have said we don’t need this bill that I introduced this week, and I would disagree with that because we do have the ability to test for Down syndrome after 10 weeks of pregnancy, and again at 15 weeks there is another test that is available," Noem said in a Thursday, Jan. 28 press conference.

But a deeper look at the timing of Down syndrome testing and abortion availability in South Dakota paints a more complex picture of the rationale behind Noem's proposed bill, now designated House Bill 1110 and awaiting action in the House State Affairs Committee.

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Timing, testing make for small window

The window for this ban to matter is a very small one — a couple of weeks at most.

South Dakota bans abortions after a pregnancy is 20 weeks along. The Planned Parenthood medical center in Sioux Falls, the only place to get an elective abortion in the state, only provide abortions up to 13 weeks and 6 days.

The earliest Down syndrome tests, and also the least accurate, can be taken at 10 weeks, with other more accurate testing in later weeks available but irrelevant due to limitations in South Dakota on access to elective abortions. And, testing for Down syndrome is not routine, according to Sioux Falls-based heath system Sanford Health.

"There are several tests that can be done at different points in pregnancy. The earliest test is available at 10 weeks gestation, but most of our patients do not screen for Down syndrome," said Erika Batcheller, Sanford Health spokesperson, in an emailed statement.

The vast majority of abortion procedures are conducted early in a pregnancy, before a Down syndrome test is even available. according to annual abortion reports produced by the South Dakota Department of Health.

In 2019, the more recent year such a report is available , more than half of abortions performed in South Dakota — 54.2% — took place by the end of gestational week eight. If you include abortions performed in weeks nine and 10 (the very earliest a Down syndrome test is conducted), that percentages jumps to 77.4%, more than three out of four abortions performed in the state.

There were 414 abortions conducted in South Dakota in 2019. Only seven took place with the knowledge of "a fetal abnormality present at the time of the abortion," according to the state's latest annual abortion report.

“It’s not any of our business to decide these decisions for women," said Kristin Hayward, manager of advocacy and development for Planned Parenthood in South Dakota. "When it’s all said and done, this is about trying to create a reason, trying to create a ban to make it more difficult, when there’s already an undue burden on the women of South Dakota to obtain an abortion.”

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No contact with support group

Noem made her Down syndrome legislation a signature proposal by including it in her State of the State address on Jan. 12. But she previewed it earlier that day, not via in-state media, but in a morning "Fox & Friends'" interview on Fox News .

In a live shot from the governor's mansion in Pierre, she appeared with Rachel Campos-Duffy, a Fox News contributor, and former Republican Rep. Sean Duffy of Wisconsin. The couple's daughter, Valentina, has Down syndrome.

"At this time especially, we're living in a time where so many people are being censored," Campos-Duffy said. "Gov. Kristi Noem is giving a voice to a group of people who don't have a voice, who don't have a lobby, who don't have anyone to fight for them other than their moms and a good leader like Gov. Noem."

Not involved in Noem's legislation was New Directions Down Syndrome Association , perhaps the largest Down syndrome family support group in South Dakota, with about 2,000 families in its organization.

Contacted by Forum News Service, its leadership declined to take a position on the legislation due to the wide range of views among its membership. But its board indicated they would like to be involved with any actions or policies affecting those with Down syndrome.

"While we’ve not been in communication with Gov. Noem’s office in the drafting of this bill, we’re encouraged by her support of individuals with Down syndrome, and look forward to learning more about any further policies or actions she may have in mind to support these members of our community at birth and throughout their lives," said New Directions' board in a statement.

Brandon Tilus, the board's president, described how the group makes and distributes education packets through local hospitals to help parents who have just received a Down syndrome diagnosis.

"That’s the part, if you don’t have someone in your ear and helping to balance those fears with the joys, and the way that life is going to change over time, it can be really difficult," he said.

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The packets include myth-busting information about the genetic disorder and contact details to reach out for support at what could be a critical decision point, Tilus said.

" Even within our membership, there’s probably members who wish we advocated more strongly to have a baby than we already do. I’m sure there are members who feel that way. And I’m sure there are other members in our community who feel that even the question of it is preposterous," he said. "We have to balance that in our materials, too.”

Jeremy Fugleberg is an editor who manages coverage of health (NewsMD), history and true crime (The Vault) for Forum News Service, the regional wire service of Forum Communications Co, and is a member of the company's Editorial Advisory Board.
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