South Dakota Right to Life Executive Director Dale Bartscher speaks to the House State Affairs Committee on Feb. 7, 2024. (Makenzie Huber/South Dakota Searchlight)
PIERRE — Republican lawmakers declared their opposition Wednesday to a potential November ballot question that would reinstate abortion rights.
Rep. Gary Cammack, R-Union Center, introduced a resolution raising concerns about the ballot measure, hoping to “elevate the conversation,” he told lawmakers during a House State Affairs Committee hearing. Eighty-three of the Legislature’s 92 Republicans are sponsoring the resolution.
Proponents and opponents presented lawmakers with emotional testimony and conflicting interpretations of not only the proposed ballot question but also interpretations of what constitutes an abortion under state law.
“What bothers me is that it gives the guise that it takes care of women,” said Rep. Taylor Rehfeldt, R-Sioux Falls, of the ballot question. “What I mean by that is that they’re trying to tell you that it’s taking care of women but it’s not.”
The resolution passed the committee 11-1, only opposed by Democratic Sioux Falls Rep. Erin Healy, who argued that access to abortion is a health care issue that is “politicized to the detriment” of South Dakotans. The full House of Representatives will debate the resolution next.
Petitions are circulating to place the abortion ballot question, which would amend the state’s constitution, before voters in the Nov. 5 election.
Safety standards and ‘back alley’ abortions
The proposed constitutional amendment would prohibit the state from regulating abortion during the first trimester of a pregnancy. Opponents of the amendment said Wednesday that the amendment would therefore also prohibit the state from setting safety standards for abortions in the first trimester.
The U.S. Supreme Court overruled Roe v. Wade in its Dobbs decision in 2022, and a state trigger law took effect outlawing abortion except in cases to “preserve the life” of a pregnant woman. Before that, South Dakota had laws requiring legal abortions to be performed at a licensed abortion facility, such as a hospital or a Planned Parenthood clinic.
That law among others would no longer be in force, allowing for unregulated abortions in the first trimester, opponents of the amendment testified. One opponent said the amendment would legalize “back alley abortions.”
Most abortions performed in the United States are medication abortions, that involve two different pills. The other form of abortion in the first trimester is vacuum aspiration, which is typically performed up until 14 weeks of pregnancy or the end of the first trimester. Medication abortion requires a prescription order by a physician, and a vacuum aspiration is a form of surgery.
Dakotans for Health is circulating the petitions to place the constitutional amendment on the ballot. Executive Director Rick Weiland confirmed to South Dakota Searchlight that the constitutional amendment would not allow the Legislature to implement safety regulations during the first trimester, though it could for the second trimester, but only “in ways that are reasonably related to the physical health of the pregnant woman,” according to the measure’s text. The amendment would allow the state to ban abortions in the third trimester, with exceptions for the life and health of the mother.
He challenged the notion that the amendment would lead to “back alley abortions” and said that OB-GYNs are regulated by their own professional and internal facility standards that would ensure safety standards for patients.
“Do not be afraid to let the people decide. Do not put your political thumb on the scale of their decision with a resolution filled with falsehoods,” Weiland said in testimony to the legislative committee. “They know our state’s motto is ‘Under God The People Rule.’”
Lawmakers also raised concerns about the amendment’s lack of required parental consent for minors seeking an abortion, though Weiland said the Legislature could implement parental consent regulations.
“They can pass any laws they want as long as they fit in the construct of the language of this constitutional amendment,” Weiland told reporters during a press conference.
Physicians split on what legal abortions are
Two OB-GYNs offered conflicting testimony during the resolution’s hearing about what an abortion is and what care physicians can provide patients. Rep. Rehfeldt asked both if they would consider an induction an abortion.
Katherine Degen, a Rapid City-based OB-GYN, said an induction – which is when a health care provider uses medicine or other methods to induce labor and end a pregnancy – could meet the state’s definition of an abortion when babies die from complications.
“Therefore their life is terminated in the process of labor induction,” she said. “… I’m placing the mother’s life ahead of this very viable baby.”
The medical definition of an abortion, according to Harvard Medical School, is “the removal of pregnancy tissue, products of conception or the fetus and placenta from the uterus.”
But the state’s legal definition of abortion is “the intentional termination of the life of a human being in the uterus.”
Patti Giebink, a Chamberlain-based OB-GYN, argued that such a definition significantly limits the scope of what is a legal abortion in South Dakota because it questions the physician’s intent.
Only elective abortions, Giebink said, are illegal based on state law.
“I take care of the patient, and this South Dakota trigger ban does not bind my hands,” Giebink said. “It doesn’t tell me that I can’t take care of a miscarriage or an ectopic pregnancy complication.”
Separate bill would provide guidance
Rehfeldt hopes to offer clarification to physicians across South Dakota in a separate bill she introduced this session. The bill would instruct the state Department of Health to create informational material describing what constitutes an abortion under state law and what the standards of care are for treating pregnant patients experiencing life- or health-threatening medical conditions.
The department would work with physicians and the Attorney General’s Office to provide clarification.
Attorney General Marty Jackley previously told South Dakota Searchlight he would not be able to offer interpretations of abortion exceptions until a case appears in court. This bill would force that conversation forward, Rehfeldt said.
“The part that concerns me the most is that I hear providers are hesitant to provide care, and we can’t wait until a bad scenario happens before we get that clarification,” Rehfeldt told South Dakota Searchlight. “I think the time is now to make sure we are clarifying and make sure physicians know they can take care of women.”
This will be Rehfeldt’s second attempt at clarifying when physicians can provide abortions under the state’s trigger ban. She tabled a bill last legislative session that would have expanded the trigger law to the health of the mother, in addition to the life of the mother.
“How do those two definitions interchangeably work together so people know what is appropriate or what’s not?” Rehfeldt said. “That’s why I think providers get so confused, especially with all the noise and the politics of it.”
Rehfeldt said she hopes the conversation surrounding abortion in the Legislature will encourage voters to further analyze the ballot measure and its interpretation.
“Taking care of women shouldn’t be a political issue,” Rehfeldt added. “Taking care of women should just be the standard.”
Rehfeldt’s bill is not scheduled for a hearing yet.
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