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).
