Abortion Bans

NEAR-TOTAL WITH DELAYED EFFECTIVE DATE ("TRIGGER" BAN)

In 2005, South Dakota enacted a near-total ban on abortion, to become effective if the Supreme Court overturns Roe v. Wade.  The ban prohibits abortion unless an abortion is necessary to preserve a woman's life, and specifically applies both to surgical and medical (mifepristone) abortion. A person who performs a prohibited abortion could be imprisoned for up to two years.  S.D. Codified Laws § 22-17-5.1 (Enacted 2005).

AFTER 12 WEEKS

South Dakota's unconstitutional and unenforceable ban outlaws abortions performed as early as twelve weeks.  S.D. Codified Laws §§ 34-23A-27 to -33 (Enacted 1997).

South Dakota's ban is unconstitutional according to the U.S. Supreme Court's decision in Stenberg v. Carhart.  530 U.S. 914 (2000).  In Stenberg, the Court held that a similar ban, which lacked an exception to protect a woman's health and was written so broadly as to ban more than one procedure, placed an undue burden on a woman's right to choose.  Responding to the Stenberg decision, South Dakota's Attorney General at the time, Mark Barnett stated, "In practical terms, [the U.S. Supreme Court decision] means that the South Dakota statute is unenforceable. . . . Our hands are tied.  They've expressed the law and we must follow it."  Foes of 'Partial-Birth' Abortion Face Uphill Battle After Court Ruling, Assoc. Press, June 29, 2000.

South Dakota's unconstitutional and unenforceable law makes the performance of any abortion procedure that falls within a broad definition a felony, unless the procedure is necessary to preserve the life of a woman endangered by a physical disorder, illness, or injury, including a life-endangering condition caused by or arising from the pregnancy itself, and no other medical procedure will suffice.  S.D. Codified Laws §§ 34-23A-27 to -33 (Enacted 1997).

There is also a Federal Abortion Ban, which applies nationwide regardless of state law.  The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health.  In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure.  Click here to read more about the Federal Abortion Ban.

Biased Counseling & Mandatory Delay

South Dakota has a partially unconstitutional and unenforceable law requiring that a woman may not have an abortion until at least two hours after the physician informs her, in writing, of the following:  (1) the name of the physician who will provide the procedure; (2) abortion ends "the life of a whole, separate, unique, living human being;" (3) she has a relationship with the "unborn human being" and that this relationship is protected under law; (4) the relationship and the constitutional rights she enjoys with regards to that relationship will end when she has an abortion; (5) the medical risks of abortion, including an increased risk of suicide, and those associated with carrying the pregnancy to term; and (6) the gestational age of the "unborn child."

Moreover, at least 24 hours prior to an abortion, the attending physician, referring physician, or an agent of both must inform the woman, in person or by telephone, of the following information:  (1) that medical assistance benefits may be available for prenatal care, childbirth, and neonatal care; (2) that the "father" is liable for child support, even if he offered to pay for an abortion; (3) the contact information for a crisis pregnancy center and (4) she has the right to review state-prepared materials.

The state-prepared materials must:  (1) describe with pictures or drawings the anatomical and physiological characteristics of the "unborn child" at two-week gestational increments, including the possibility of survival; and (2) list public and private agencies and services available to assist the woman during pregnancy, childbirth, and while the child is dependent, including adoption agencies.  If the woman chooses to view the materials, she may not obtain an abortion until at least 24 hours after she has been given the materials in person or 72 hours after the materials have been mailed to her.

In 2005, a federal district court issued a preliminary injunction preventing amendments to South Dakota's biased-counseling provision from going into effect.  The previous version of the statute does not require providers to tell the woman that abortion ends "the life of a whole, separate, unique, living human being," that she has a relationship with the "unborn human being" and this relationship is protected under law, and that the relationship and the constitutional rights she enjoys with regards to that relationship will end when she terminates the pregnancy.  The district court found that the amended version of the statute infringes on the First Amendment rights of providers as it requires them to promote the state's ideology on an "unsettled medical, philosophical, theological, and scientific issue, that is, whether a fetus is a human being."  However, in 2008, a federal appeals court sitting en banc vacated the preliminary injunction, and remanded the case back to the district court.  In doing so, the appellate court found that the district court had failed to explain satisfactorily why the required script was "untruthful or misleading," or "ideological."  Planned Parenthood MN, ND, SD v. Rounds, No. 05-3093 (8th Cir. June 27, 2008).   In 2009, the original district court held that providers must tell the woman that abortion ends "the life of a whole, separate, unique, living human being," but do not have to tell the woman that she has an existing relationship with the "unborn human being" or that abortion increases the likelihood of suicide.  Planned Parenthood MN, ND, SD v. Rounds, No. 05-CV-4077-KES (S.D. Dist. Ct. August 20, 2009).

S.D. Codified Laws §34-23A-10.1 (Enacted 1980; Last Amended 2005); S.D. Codified Laws §34-23A-10.2 (Enacted 1980; Last Amended 1997); S.D. Codified Laws §34-23A-10.3 (Enacted 1993; Last Amended 2005); S.D. Codified Laws §34-23A-22 (Enacted 1993; Last Amended 1997).

The state-prepared materials must be available on the department of health's website.  S.D. Codified Laws §34-23A-10.4 (Enacted 2003).

Refusal to Provide Medical Services

ABORTION REFUSAL CLAUSE

South Dakota allows certain individuals or entities to refuse to provide abortion services.

To whom does the refusal clause apply? Hospitals, physicians, nurses, counselors, social workers, or other person.

What does the refusal clause allow? The refusal of a physician, nurse, or other person to perform or assist in an abortion may not be a basis for liability or for dismissal or other prejudicial actions by a hospital or medical facility with which the person is affiliated or employed. No counselor, social worker, or other person in a position to address "the abortion question . . . as part of [the] workday routine" who provides or refuses to provide abortion advice or assistance may be liable to any person or subject to retaliation by an institution with which the person is affiliated or employed. No hospital is required to admit a woman for the purpose of abortion. The refusal of a hospital to participate in accordance with an adopted policy may not be a basis for liability.

Does the law require the refusing entity to notify the persons affected? No.

Are there circumstances under which a refusal clause may not be exercised? No.

Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.

Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.

S.D. Codified Laws §§ 34-23A-11 to -14 (Enacted 1973).

PHARMACIST REFUSAL CLAUSE

South Dakota allows pharmacists to refuse to fill or refill prescriptions.

To whom does the refusal clause apply? Pharmacists.

What does the refusal clause allow? No pharmacist may be required to dispense medication if there is reason to believe that the medication would be used to cause an abortion. Refusal to dispense such medication may not be the basis for any claim of damages against the pharmacist or the pharmacy, or the basis for any disciplinary, recriminatory, or discriminatory action against the pharmacist.

Does the law require the refusing entity to notify the persons affected? No.

Are there circumstances under which a refusal clause may not be exercised? No.

Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.

Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.

Restrictions on Low-Income Women's Access to Abortion

South Dakota prohibits public funding for abortion for women unless the procedure is necessary to preserve the woman's life.  S.D. Codified Laws § 28-6-4.5 (Enacted 1978).  This statute conflicts with federal law prohibiting participating states from excluding abortion from the Medicaid program in cases of rape or incest as well as life endangerment.

Restrictions on Young Women's Access to Abortion

South Dakota law restricts young women's access to abortion.

Is the law enforceable?  Yes.

Who is considered a minor?  A young woman under the age of 18 who is not emancipated.

What is required - parental consent or parental notice?  Notice.

Who must be notified?  One parent.

Are there other trusted adults who may be notified instead?  No.

What is the process for obtaining notification?  A young woman may not obtain an abortion until at least 48 hours after the physician or physician's agent personally delivers written notice to one parent, unless the person entitled to notice certifies in writing that he or she has been notified.  In lieu of personal delivery, notice can be made by certified mail.  If notice is made by certified mail, the 48-hour period begins to run at noon on the next day regular mail delivery takes place. 

May the parental mandate be waived if a young woman is a victim of rape or incest?  No.

May the parental mandate be waived if a young woman is a victim of child abuse?  No.

May the parental mandate be waived if a young woman's health is threatened?  Yes, but only if the attending physician certifies in writing that "a medical emergency exists and there is insufficient time to provide the required notice."  A medical emergency is defined as a medical condition of the pregnant woman that necessitates an immediate abortion to preserve her life or for which a delay will create "serious risk of substantial and irreversible impairment of a major bodily function."  This law was amended in 2005, and now states that if a young woman receives an emergency abortion, her parent must still be notified after the fact, unless a judge finds that she is mature and capable of determining whether notice should be given, or that waiver of notice was in her best interests.

May the parental mandate be waived under any other circumstances?  Yes, the young woman may try to obtain permission from a judge.

If a young woman must obtain permission from a judge, what is the process?  She must secure a court order stating either that she is mature and capable of giving informed consent or that an abortion without parental notice is in her best interests.

Are there other significant requirements under the law?  No.

Has a court considered the constitutionality of this law?  No.

Other information about the law:  None.

S.D. Codified Laws §§ 34-23A-1 (Enacted 1973; Last Amended 2006), -7 (Enacted 1973; Last Amended 2005), -7.1 (Enacted 1997; Last Amended 2005), -10.2 (Enacted 1980; Last Amended 1997), -22 (Enacted 1993; Last Amended 1997), §26-1-1 (Enacted 1939; Last Amended 1972).

Targeted Regulation of Abortion Providers (TRAP)

South Dakota imposes a variety of requirements on abortion providers that are not imposed on other health care providers, including:

Restrictions on Where Abortions May Be Performed

South Dakota places medically unnecessary restrictions on where abortions may be performed.

Facilities that provide abortion care must obtain a license that cannot exceed $2,000 and must have at least one licensed physician on staff.  S.D. Codified Laws § 34-23A-48 (Enacted 2006).  The South Dakota Department of Health has extensive access to providers' facilities:  "The [South Dakota Department of Health] may inspect an abortion facility at reasonable times as necessary to ensure compliance." S.D. Codified Laws § 34-23A-49 (Enacted 2006). 

South Dakota facilities that provide abortions are also subject to various personnel, sanitation, safety, and "quality assurance" requirements that other medical facilities are not subject to.  S.D. Codified Laws § 34-23A-51.

South Dakota has a law that requires abortions after the 12th week through the 24th week of pregnancy "be performed in a hospital, or if one is not available, in a licensed physician's medical clinic or office of practice subject to the requirements of § 34-23A-6 [blood supply requirements]."  S.D. Codified Laws § 34-23A-4 (Enacted 1973).  A consent decree settled a lawsuit brought by reproductive health care providers that challenged the constitutionality of this law.  See Planned Parenthood of Minn., N.D., S.D. v. Janklow, 216 F.Supp. 2d 983, 993 (D.S.D. 2002), rev'd by Planned Parenthood of Minn., N.D., S.D., v. Rounds, 372 F.3d 969 (8th Cir. 2004), Planned Parenthood of Minn., N.D., S.D.  v. Rounds, No. Civ. 02-4009 (D.S.D. Aug. 11, 2005) (consent decree).  The consent decree interpreted the law to mean that a "sufficient supply of blood immediately available" includes all abortions performed up to and including 14 weeks and 6 days gestation rather than the 12 week limit.  Planned Parenthood of Minn., N.D., S.D.  v. Rounds, No. Civ. 02-4009 (D.S.D. Aug. 11, 2005) (consent decree).

Restrictions on Who May Perform Abortions

South Dakota prohibits certain qualified health care professionals from performing abortions.

Only a physician licensed by the state or a physician practicing medicine or osteopathy and employed by the state or the United States may perform an abortion.  S.D. Codified Laws §§ 34-23A-1(7), -3, -4, -5 (Enacted 1973).

The State Board of Medical and Osteopathic Examiners may not approve a physician assistant practice agreement that includes abortion as a permitted procedure.  S.D. Codified Laws §§ 36-4A-20.1 (Enacted 2000), S.D. Codified Laws §§ 36-4A-1, -20 (Enacted 1973).

In addition, the South Dakota Board of Nursing and the South Dakota Board of Medical and Osteopathic Examiners may not approve a nurse practitioner or nurse midwife collaborative agreement that includes abortion as a permitted procedure.  S.D. Codified Laws §§ 36-9A-1, -15 (Enacted 1979), S.D. Codified Laws § 36-9A-17.2 (Enacted 2000).