Access to out-of-state abortions could come under scrutiny during special session

SIOUX FALLS, S.D. — For Kim Floren, the past week has been among the most chaotic of her career.

“I think every single person I talked to on the phone was crying to some degree,” Floren told Forum News Service during a Tuesday, June 28, interview. “They're stressed out, and they don't know what comes next.”

Floren is the director of Justice through Empowerment Network , or JEN, one of the only abortion funds in South Dakota. It’s a volunteer-driven operation that handles logistics and costs for people, especially those with lower incomes, looking to travel outside the state to get an abortion.

Leaving the state to receive an abortion is now one of the few options for most expecting parents in South Dakota looking to terminate a pregnancy, as abortions are illegal in the state unless “necessary to preserve the life of the pregnant female.”

After the Supreme Court’s decision in Dobbs v. Jackson Women’s Health overturned the federal abortion protections first established in Roe v. Wade, reaction from abortion rights activists across the country came swiftly in the form of protests and fundraising drives. A viral social media campaign encouraged donations to local abortion funds listed on abortionfunds.org , especially in states with plans to restrict abortions following the repeal of federal protections. One of the funds listed under South Dakota was JEN.

Floren, who founded JEN in October 2020, says the jump in fundraising and attention stemming from the June 24 Supreme Court decision was immediate and drastic. Over the subsequent weekend, the group raised $30,000, a figure that outpaced the organization’s entire budget during their first year of operation.

Demand, too, has grown. In May and June of this year, the organization worked with approximately 85 patients each month, nearly triple their average from previous months. Floren mainly attributes the increase in need to rising prices, as people now have less disposable income to handle the high costs associated with leaving the state for an abortion.

But just as JEN and other organizations, including some employers, take on a larger role in providing access to out-of-state abortions, new restrictions may be on the way. With the June 24 announcement of a special South Dakota legislative session to “save lives and help mothers,” access to out-of-state abortions will likely come under the scrutiny of lawmakers and lobbying groups. Depending on the specific nature of these restrictions, experts say they may test the legal boundaries of state power.

“We are concerned about businesses in the state of South Dakota that are assisting our pregnant mothers to do, what we consider, the committing of homicide by helping them obtain their abortion in a neighboring state,” said Dale Bartscher, the executive director South Dakota Right to Life, an anti-abortion group with considerable support in both legislative chambers.

Janna Farley, the communications director for the ACLU chapters of South Dakota, North Dakota and Wyoming, said the special session would likely be a “testing ground” for new ways to further restrict abortion access.

In a Twitter thread from May 16 laying out measures he would support in a special session related to abortion, House Speaker Pro Tempore Jon Hansen said he would support a law requiring out-of-state doctors to “refer pregnant South Dakota mothers to third-party counseling to screen for pressure and coercion” before moving ahead with an abortion.

In the same thread, Hansen, a Republican, indicated he would also support restricting corporations “from paying for the expenses to abort South Dakota babies,” in addition to barring the state “from doing business with any corporation that pays for babies to be aborted.”

Hannah Haksgaard, an associate professor of law at the University of South Dakota, called the ability to regulate medical providers outside the state “complicated.”

“Even if a court would permit a lawsuit to proceed against an out-of-state provider who treated a South Dakotan, there are potential procedural barriers such as jurisdiction and venue,” Haksgaard said. “There is enough unsettled law surrounding whether a pro-life state can regulate abortions occurring out of its state that we can expect several years of litigation on the question.”

In national interviews and statements over the past weekend, Gov. Kristi Noem has focused mainly on incentivizing people to carry their pregnancies to term rather than further restricting abortions, pointing to life.sd.gov as a resource for expecting parents. The website pulls together already-existing resources on adoption, parenting and state financial assistance into one location.

Speaking with CBS’s “Face the Nation” on Sunday, June 26, Noem promised that expecting mothers in South Dakota would be “protected from any kind of prosecution” and said she had “no intention” to go after corporations that covered costs for employees traveling out of state for an abortion. At the same time, she acknowledged in a separate interview that the decision is not hers alone.

“Obviously when you get to bills and laws and legislators and people, everyone has different opinions,” Noem told ABC’s “Good Morning America” on Monday, June 27.

A date for a special legislative session has not yet been set.