South Dakota abortion law to challenge Roe v. Wade

Planned Parenthood is considering either a lawsuit or a state referendum to overturn the measure, under which physicians could face felony charges.

By Amy Lynn Sorrel — Posted March 20, 2006

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When Gov. Mike Rounds this month signed legislation banning almost all abortions in South Dakota, he likely set in motion a legal battle to test the staying power of Roe v. Wade. The outcome will determine how much control state governments will have over when doctors can perform the procedure.

The new law makes it a felony for doctors to perform the procedure, except to save the woman's life. It does not include exceptions for rape, incest or the woman's health. Doctors could face up to five years in prison and $5,000 in fines.

By banning abortion throughout pregnancy, South Dakota's law is a bold departure from other states that have attempted to restrict abortion using parental consent and notification laws or by preventing late-term abortions. It challenges the 1973 Roe decision, which established that states can prohibit abortion only after fetal viability but must include exceptions to protect the woman's life and health. The law further defies Supreme Court precedent that prevents states from creating an "undue burden" on women's abortion access.

At least eight other states are considering measures aimed at overturning Roe. The heightened activity is the result of a shift on the U.S. Supreme Court. Anti-abortion lawmakers say President Bush's appointments of Chief Justice John Roberts Jr. and Justice Samuel Alito might swing the pendulum in favor of toppling Roe and allowing states to once again legislate broad abortion prohibitions.

Abortion-rights advocates argue, however, that proposed bans would be unlikely to survive legal challenges in the lower courts or to upset Supreme Court precedent establishing the "undue burden" standard. The court also has consistently struck down laws that fail to allow abortion when a woman's health is threatened, they say.

Because physicians, like the rest of the nation, are deeply divided on the abortion issue, state medical societies generally have shied away from taking a position on abortion and the legislation. Instead, they are focusing on the effect any changes would have on physicians and their relationships with patients.

"We realize physicians have positions on both sides, but we are closely watching legislation mainly to make sure bills don't pass with an onerous impact on physicians," said Kevin Bjordahl, MD, president of the South Dakota State Medical Assn., which has not taken a position on the law. Few doctors would be affected by the measure, he said.

Lawmakers in Indiana are debating a similar measure. The medical society there has declined to take a stance on the proposed abortion ban. But Indiana State Medical Assn. President Kevin Burke, MD, said it's in the best interest of medicine and patients to allow physicians to use their medical judgment in situations involving pregnancy.

"[Physicians] make moral, ethical and life-and-death decisions every day, and we are allowed to use our professional judgment in consultation with patients and families to make those decisions, as opposed to having [the Legislature] do that," he said.

AMA policy states that "the issue of support or opposition to abortion is a matter for members ... to decide individually, based on personal values or beliefs."

Some doctors oppose South Dakota's law and proposed state abortion bans because they do not adequately protect patients for whom carrying a pregnancy to term might cause severe health problems. They also say bans put doctors in a legal bind if their judgment to perform the procedure for medical reasons is called into question.

Maria Bell, MD, a gynecological oncologist in Sioux Falls, S.D., opposes the ban and supports Supreme Court precedent. She says criminalizing the procedure might drive specialists, such as perinatologists, out of state because of legal concerns and because they can't offer termination to women who need it. Only one abortion clinic is in the state, but medically necessary abortions are performed in hospitals.

"This abortion law may have an economic impact on the practice of medicine in South Dakota and on hospitals being able to keep an intensive care neonatology staff," said Dr. Bell, who was on a state task force studying abortion issues before the ban was passed.

Other doctors disagree, however, and say South Dakota's law offers adequate legal protection for doctors.

"We do have to be careful when drafting laws that criminalize abortion to make sure that doctors aren't going to face a penalty," said David Stevens, MD, executive director of the Christian Medical and Dental Assns.

But South Dakota's law states it will not prosecute doctors if adequate efforts are made to save the woman's and infant's lives, which is not a difficult standard to meet, he said.

The CMDA supports laws that include an exception for the life of the mother, Dr. Stevens said, but believes a health exception is too broad.

"We are sailing into uncharted waters with greater limitations, but the bottom line is we as doctors have to protect the life of every patient, including the unborn," he said.

Rep. Roger Hunt, a Republican who sponsored South Dakota's law, argues that when Roe was decided, little was known about the procedure and the court misinterpreted the Constitution. "The federal government doesn't have any delegated authority to work in [abortion]," he said. Under the 10th Amendment, which deals with states' rights, states should be able to legislate on the procedure, he added.

Two recent Supreme Court decisions are indications the high court wants to revisit abortion, said Hunt. A January ruling allows New Hampshire to revise its abortion law because it lacked a health exception, and a February decision refused to apply federal racketeering laws to block anti-abortion protesters.

But Americans United for Life disagrees with the timing and is discouraging states from pursuing similar legislation for now.

"We encourage legislators to do things that make sense and that will go into effect," like informed consent and notification laws, said Daniel McConchie, the group's vice president. "We will work to help [South Dakota] defend its law but don't think it's the best strategy." Cases in the Supreme Court pipeline might change the boundaries of abortion law, McConchie said. He pointed to the challenge against the federal "Partial-birth Abortion Act" and New Hampshire's case, likely to get kicked back up. "Then we'll be able to see what the court is doing," he said.

Gearing up for a struggle

abortion-rights advocates are ready to fight abortion ban measures, which they say violate women's constitutional rights to privacy and to make personal health care decisions.

"We have no intent of allowing the law to take effect," said Kate Looby, state director for Planned Parenthood in South Dakota. The Planned Parenthood Federation of America is considering two strategies to block the ban: either a lawsuit or a state referendum to overturn it, she said. The law is scheduled to take effect July 1.

Even with two new justices, Looby said, it is unlikely the high court will upset 33 years of abortion precedent.

"The silver lining is that [the challenge to Roe] is shining the light on efforts across the country to eviscerate women's rights to abortions," said Jackie Payne, assistant director of government relations for the Planned Parenthood Federation of America.

States have recently enacted a flurry of laws aimed at curbing abortions.

Seven states in 2005 passed "mandatory counseling" measures, according to the Guttmacher Institute, which supports abortion rights. These require women seeking abortion be given specific information, for example, that life begins at conception, ultrasound imaging is available or the fetus might feel pain.

If Roe is overturned, seven states have "trigger laws" that would immediately ban abortion. Thirty-six states have laws prohibiting abortion after a certain point in pregnancy, except to protect a woman's life and health.

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State abortion laws

States have adopted a wide range of laws to restrict abortion. Here is a snapshot of what some states have enacted in the past year.

Abortion ban: South Dakota

Counseling and waiting period laws: Arkansas, Georgia, Indiana, Louisiana, Minnesota, Oklahoma, South Dakota

Parental consent and notification laws: Arkansas, Florida, Georgia, Idaho, Missouri, Oklahoma, Utah

Source: Guttmacher Institute

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