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State Laws

South Dakota


Political Information

Executive (Governor)

Anti-choice

Senate

Anti-choice

House

Anti-choice

Abortion-Care Policies

Abortion Providers

Abortion Providers: Restrictions

South Dakota imposes extra restrictions on abortion providers, despite the fact that all health-care providers already must comply with a variety of federal and state regulations governing health, safety, building and fire codes, and zoning requirements.  

Restrictions on Where Abortion Services May Be Provided

South Dakota places medically unnecessary restrictions on where abortion services may be provided.

Any facility other than a hospital-including a physician’s office-that provides abortion care must become licensed as an "abortion facility" and must comply with a uniquely imposed licensure scheme not required of other medical providers.  These regulations include various personnel, sanitation, safety, and "quality assurance" requirements, many of which are not medically related.  S.D. Codified Laws, § 34-23A-51.  For instance, the regulations stipulate the size of procedure rooms (115 square feet) and recovery rooms (45 square feet) and dictate the types of flooring and lighting that may be used.  S.D. Admin. R. 44:67:05:02, 44:67:05:03 (2006). The state health department is required to post every inspection publicly and, if applicable, every corrective action of an abortion provider.

§ 34-23A-49.1 (enacted 2016). H.B.1123, Reg. Sess. (2016).

South Dakota has a law that requires abortion services between 12 and 24 weeks to "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 abortion procedures provided up to and including 14 weeks and six 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 Provide Abortion Services

South Dakota prohibits certain qualified health-care professionals from providing abortion services.

Only a physician licensed by the state or a physician practicing medicine or osteopathy and employed by the state or the United States may provide abortion care.  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).


Abortion Rights

Post-Viability Ban

South Dakota’s post-viability abortion restriction states that no abortion may be provided after the 24th week of pregnancy unless necessary to preserve the woman’s life or health.  S.D. Codified Laws § 34-23A-5 (Enacted 1973).

NARAL Pro-Choice America supports the legal framework established in Roe v. Wade. Regarding the right to abortion in the third trimester, Roe allows for restrictions on post-viability abortion so long as they contain adequate exceptions to protect the woman’s life and health. However, many states have bans with inadequate exceptions, no exceptions at all, or define viability as occurring at a particular point in pregnancy. A state may not prohibit abortion prior to viability, which is that point at which a fetus is capable of "meaningful life" outside a woman’s body. Roe v. Wade, 410 U.S. 113, 163 (1973). Because viability is a point that varies with each pregnancy, states may not declare that it occurs at a particular gestational age.

NARAL Pro-Choice America opposes South Dakota’s law because it is unconstitutional to the extent that it prohibits pre-viability abortion by defining viability at 24 weeks.  A state may not prohibit abortion prior to viability, which is that point at which a fetus is capable of "meaningful life" outside a woman’s body.  Roe v. Wade, 410 U.S. 113, 163 (1973).  Because viability is a point that varies with each pregnancy, states may not declare that it occurs at a particular gestational age.  Colautti v. Franklin, 439 U.S. 379, 388-89 (1979).


Near-Total Abortion 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 necessary to preserve a woman’s life, and specifically applies both to surgical and medical (mifepristone) abortion.  A person who provides a prohibited abortion could be imprisoned for up to two years.  S.D. Codified Laws § 22-17-5.1 (Enacted 2005).


Abortion Bans Throughout Pregnancy: Procedure Ban

South Dakota has an unconstitutional and unenforceable ban that outlaws abortion procedures as early as 12 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 had no 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 any abortion procedure that falls within a broad definition a felony.  The law has an exception if an abortion 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 certain second-trimester abortion procedures and has no 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.


Abortion Bans Throughout Pregnancy: Ban by Week

South Dakota outlaws abortion after 20 weeks without an adequate exception to protect women’s health, for cases in which the pregnancy was the result of rape or incest, or in cases of fetal anomaly.

South Dakota’s law makes abortion after 20 weeks a crime, unless necessary to save a woman’s life or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. Physicians in violation of the law would be guilty of a felony, which carries up to two years in prison and a fine of up to $4,000. S.D. Codified Laws §§ 34-23A-69 (Enacted 2017).

The law also requires that if the procedure is done between weeks 12 and 23, it must be provided by a physician and only in a hospital. The law requires doctors to report to the health department several factors, including the reason for the abortion, how the procedure was paid for — including by which type of insurance company — how fetal remains were disposed of, the number of previous abortions the woman has had, demographic information about the woman, the name of the physician, and whether the woman had any type of sex-determination tests. While NARAL Pro-Choice America does not oppose reasonable reporting requirements, the specific, intrusive questions in this law, the fact that the information is not necessary for public health, and the politicized context of the statute render this set of requirements particularly troublesome. § 34-23A-4 (Enacted 1973, Last Amended 2016); § 34-23A-34 (Enacted 1998, Last Amended 2016). S.B. 72, Reg. Sess. (S.D. 2016).


Reasons-Based Ban: Race- and/or Sex Selection

PLACEHOLDER


Biased Counseling

Biased Counseling

South Dakota has a law requiring that a woman may not have an abortion until at least 72 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; (6) the gestational age of the "unborn child;" (7) that even after taking mifepristone, it is still possible for the woman to stop the abortion (and the state is required to post on its website information about halting the abortion).  

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).  In 2011, a three-judge panel of a federal appeals court reversed the district court decision and held that providers must tell the woman that she has an existing relationship with the "unborn human being" but do not have to tell the woman that abortion increases the likelihood of suicide. Planned Parenthood MN, ND, SD v. Rounds, Nos. 09-3231 (8th Cir. Sep. 2, 2011).  However, in 2012, the federal appeals court heard the case en banc and ruled to allow the suicide provision also to go into effect.  Planned Parenthood MN, ND, SD v. Rounds, Nos. 09-3231 (8th Cir. Jul. 24, 2012).

S.D. Codified Laws §34-23A-10.1 (Enacted 1980; Last Amended 2016); 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 2018).  S.D. Codified Laws §34-23A-53 (Enacted 2010; Last Amended 2018).

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

In 2018, a new state law explicitly targeting the only Planned Parenthood in the state, requires the biased-counseling script to include an false statement that abortion is related to suicide, among other provisions. S.B.110, Reg. Sess. (2018).

In 2019, a new state law mandated that physicians use a form prescribed by the state when providing biased-counseling. S.D. Codified Laws § 34-23A-10.5 (Enacted 2019). Additionally, state law requires physicians to report information on how many pregnant people the physician has provided the biased counseling to and how many pregnant people chose to view a sonogram image, listen to the "heartbeat," or both. S.D. Codified Laws § 34-23A-37 (Enacted 1998, Last Amended 2019).


Mandatory Delays

Mandatory Delay

South Dakota requires a woman seeking an abortion to wait 3 business days between the time she receives biased-counseling materials and when she can get the procedure. 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).  S.D. Codified Laws §34-23A-53 (Enacted 2010; Last Amended 2013).

South Dakota also has an unconstitutional and unenforceable law providing that a woman may not have an abortion until (1) waiting three business days following the day the attending physician recites the state-mandated lecture; and (2) submitting to a state-mandated lecture at an anti-choice crisis pregnancy center.  In June 2011, a federal district court issued a preliminary injunction preventing this law from going into effect. Planned Parenthood MN, ND, SD v. Daugaard, Nos. 09-3231 (8th Cir. Jun. 6, 2011).


Insurance Coverage for Abortion

Prohibits Abortion Coverage in the Insurance Exchange

Does South Dakota expressly prohibit plans in its state exchange from covering abortion services?

Yes.  Health-insurance policies offered in the state health-insurance exchange may not include abortion coverage, with exceptions to save a woman’s life, or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.  Nothing in the law prohibits the purchase of abortion coverage outside the exchange through an optional rider for which an additional premium is paid.  However, insurers are not required to offer such riders and there is no evidence that such separate policies exist. (Even if they did exist, offering women the "option" to pay for separate abortion coverage is a false promise because no one plans for an unplanned pregnancy.)  S.D. Codified Laws § 58-17-147 (Enacted 2012).


Abortion Coverage for Low-Income People

Restricts 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.


Young People & Abortion

Parental Notice

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 that necessitates an immediate abortion to preserve the woman’s 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).


Family-Planning Policies

Insurance Coverage & Contraception

No state measure.

Contraception Coverage for Low-Income People

Improves Insurance Coverage of Contraception

South Dakota law requires Medicaid plans to cover dispensing a 12-month supply of a family planning items.

South Dakota Medicaid Pharmacy Billing Manual (July 2015) at https://dss.sd.gov/formsandpubs/docs/MEDSRVCS/Pharmacy.pdf


Emergency Contraception

No state measure.

Other Important Issues

Clinic Protections

No state measure.

Refusals & Guarantees

Refusals of Medical Care

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 persons.

What does the refusal clause allow? The refusal of a physician, nurse, or other person to perform or assist in abortion care may not be a basis for liability, 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 counseling or assistance may be liable to any person or subject to retaliation by an institution with which the person is affiliated or employed. Allows hospitals to refuse 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 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.

S.D. Codified Laws § 36-11-70 (Enacted 1998).


Counseling & Referral Bans

No state measure.

Everyone should be able to decide if, when, how, and with whom they start or grow a family.

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