No clarification for doctors performing medical abortions coming from South Dakota session
Though some anti-abortion groups made assurances that the issue of health-related abortions could be discussed in the future, the current trigger law will continue to govern doctors in the state.
PIERRE, S.D. — A last effort to give clarification to doctors considering an abortion to protect the health of the mother will not move forward, a muted end note to a session that, considering calls for a special legislative session last summer on the topic, figured to be full of abortion-related proposals.
The text of the state’s current abortion law, which took effect last June after the Supreme Court decision in Dobbs v. Jackson Women's Health Organization, gives just one exception where performing an abortion is legal, when “there is appropriate and reasonable medical judgment” that the procedure “is necessary to preserve the life of the pregnant female.”
Yet several lawmakers have said doctors are struggling to make the judgment call required by this statute.
“Health care providers are a little bit confused and need some clarification about how we can best care for moms,” said Rep. Taylor Rehfeldt, of Sioux Falls.
This relatively strict law, according to Rehfeldt, could open up South Dakota to a pendulum swing in the other way, with petitions circulating for a 2024 ballot measure that “legalizes abortion for anybody,” she said.
“That’s one end, and then we have our current trigger law that is, in many people's eyes, really restrictive,” Rehfledt said at a Republican leadership press conference on March 2. “And I think where most South Dakotans are is probably somewhere [in the middle].”
And although an attempt from Rehfeldt to clarify the abortion carve-out already in law ended early last month, supporters of this change made one last, visible effort with a bit of legislative maneuvering.
Prior to a Senate Health and Human Services committee hearing on March 1, Sen. Erin Tobin, of Winner, brought an amendment to House Bill 1053 in an attempt to clarify the current law’s exception — in part, a doctor may exercise reasonable judgment in determining that "a life-endangering physical condition caused by or arising from the pregnancy itself... would place the female in danger of death, unless an abortion is performed.”
The maneuver from Tobin would have been a “hoghouse,” a term referring to an amendment that entirely changes the character of a bill.
In its current form, House Bill 1053, sponsored by Rep. Fred Deutsch, of Florence, bars a pregnant or breastfeeding woman from receiving a medical cannabis card. It advanced out of committee and heads to the Senate floor.
Tobin’s amendment closely mirrored a clarifying bill from Rehfeldt, which she tabled on Feb. 7 in an emotional testimony in front of the House Health and Human Services committee.
“This language is about saving lives. I want to tell you that this is not the end,” Rehfeldt, who has been open about her experience with complications during pregnancy, said at the time. “I will be back next year, with a big smile on my face, to make sure that we have language that protects women. I am committed to working on this issue and I invite any and all stakeholders to work with me.”
Dale Bartscher, executive director of South Dakota Right to Life, an anti-abortion group in the state, said he had been working with Rehfeldt and Tobin since this past fall but didn't end up feeling as though Rehfeldt's bill was workable.
"We simply needed more time because what we're talking about here is a life and death issue, the life and possible death of a baby and the life of the mother," Bartscher said. "So these are critical issues, and, in the pro-life movement, we're used to taking our time and doing our research on the bills that we bring."
Bartscher added that the relatively low number of abortion-related proposals this session is due to South Dakota being the "most pro-life state in the nation."
Tobin disagreed with Bartscher's strategy on these clarifying laws, writing in a social media statement on March 1 that "South Dakota Right to Life needs to get on board, or we will become another Kansas, and lose our pro-life battle in a landslide vote by the people," referring to the incoming abortion ballot amendment in South Dakota.
While Tobin did not end up moving her amendment to reanimate those conversations, the March 1 hearing of the health committee did allow her to partially pin down Bartscher on whether he theoretically supported clarifications for doctors seeking to treat potentially life-threatening complications.
That opportunity came during House Bill 1220, a bill from Sen. Jessica Castleberry, of Rapid City, that makes clear that a mother who completes an unlawful abortion can’t be held criminally liable.
With no clarification coming for the “life of the pregnant female” clause in state statute, Castleberry’s bill appears to be the lone tweak to abortion law emerging from this session, a relatively minor change since statements from Gov. Kristi Noem this past summer indicated that the state would not prosecute mothers in the first place.
“The tragedy of abortion isn't limited to the unborn child who loses his or her life,” Bartscher said during proponent testimony. “The mother who aborts her child is also a victim. She is a victim of a callous industry created to take lives.”
Tobin, the chair of the health committee, asked Bartscher, in the vein of protecting mothers and children, whether “there is a place in the future to look at the health of the mother” in South Dakota statute, and if South Dakota Right to Life would be willing to come to the table on the issue.
“Right to Life is definitely willing to continue to collaborate with anyone on issues of protecting the mother and the baby in the mother's womb,” Bartscher said.
Jason Harward is a Report for America corps reporter who writes about state politics in South Dakota. Contact him at 605-301-0496 or firstname.lastname@example.org.