South Dakota votes down law to make performing abortions a felony

A federal appeals court ruled against a separate state law requiring doctors to give patients specific information before getting consent for an abortion.

By Amy Lynn Sorrel — Posted Nov. 27, 2006

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South Dakota voters rejected the nation's most restrictive abortion ban during the November election, upsetting state lawmakers' efforts to directly challenge Roe v. Wade. But physicians, who remain deeply divided over the government's role in regulating the procedure, say the debate is far from over.

The state law, signed in March, would have made it a felony for doctors to perform abortions, except to save the pregnant woman's life. It did not include exceptions for rape, incest or health concerns. The U.S. Supreme Court's Roe v. Wade decision, issued in 1973, established that states can prohibit abortion only after fetal viability and must include exceptions to protect the woman's life and health.

Under the South Dakota law, physicians who performed abortions would have faced up to five years in prison and $5,000 in fines.

But abortion-rights advocates mustered enough signatures during a petition campaign to delay the measure's implementation and put it to a popular vote on the Nov. 7 ballot.

South Dakotans rejected the law 56% to 44%. Some doctors opposed the ban. They said it would endanger patients who might experience serious, though not life-threatening, health problems if they carried their pregnancies to term.

"It's sending a message that the government is not going to be able to intervene and dictate how we practice medicine," said Maria C. Bell, MD, a Sioux Falls gynecologic oncologist. She took part in a state task force to study abortion before the law passed.

The South Dakota section of the American College of Obstetricians and Gynecologists urged voters to repeal the broad prohibition because the threat of criminal charges would put doctors in legal and ethical peril if their judgment to perform an abortion could be questioned.

"By impeding day-to-day medical decisions, [the ban] will undoubtedly reduce the number of new ob-gyns willing to practice in South Dakota, further jeopardizing women's health care in the state," the ACOG state chapter said before the election.

Abortion-rights advocates say the vote signals a red light to other states considering similar measures.

"Because voters in South Dakota, which has long been viewed as a pro-life state, repudiated the ban, it's unlikely legislatures around the country will take it up," said Sarah Stoesz, president and CEO of Planned Parenthood Minnesota, North Dakota, South Dakota.

Thirteen other states introduced abortion bans in 2006, said the Guttmacher Institute, which tracks abortion bills and supports abortion rights.

South Dakota lawmakers who sponsored the law could not be reached for comment.

Some doctors disagree that the vote puts the issue to rest and expect a drawn-out battle in other states.

"The intent of the bill in the first place was to get it to the [U.S.] Supreme Court. So what happened now will just move this issue to another state," said Dean Krogman, vice president of governmental relations for the South Dakota State Medical Assn. With its members split on abortion, the SDSMA did not take a position on the ban, Krogman said.

American Medical Association policy states that the choice to support or oppose abortion is one for physicians "to decide individually, based on personal values or beliefs."

Debate likely to continue

Some doctors who support prohibitions like the one in South Dakota say the law's repeal might provide guidance for crafting less-restrictive legislation that could succeed.

"There are legitimate threats to the life of the mother. But we have to find language that won't allow that to happen, but neither will we allow abortion on demand, and that's been tough to do," said Tennessee ob-gyn Gene Rudd, MD, associate executive director of the Christian Medical and Dental Assns.

The CMDA supports laws that include an exception for the life of the mother, he said, but believes that health exceptions are too broad. In spite of South Dakota's vote, Dr. Rudd said he expects states to persist on the issue. "So much of the debate is fought in the legislatures and the courts, and ultimately there is going to have to be some consensus in both," he said.

Meanwhile, two other states tried unsuccessfully to restrict abortion through ballot initiatives. Voters in California and Oregon rejected measures that would have required doctors to notify a minor patient's parents 48 hours before performing an abortion, unless the procedure was necessary to save the teenager's life.

Just three days before voters took to the polls, a three-judge panel of the 8th U.S. Circuit Court of Appeals blocked the enforcement of a 2005 South Dakota law requiring physicians to inform women seeking abortions that the procedure would "terminate the life of a whole, separate, unique, living human being."

U.S. Supreme Court precedent has upheld informed consent laws obligating doctors to give women medical information about the procedure, the court said. The flaw in South Dakota's law was that it imposed a "value judgment, rather than medical facts," and may violate doctors' First Amendment rights and patients' privacy rights, Judge Diana E. Murphy wrote in the 2-1 opinion.

"The state doesn't have the power to force doctors to carry the state's ideological message, as opposed to simply delivering medical information," said Timothy E. Branson, attorney for the regional Planned Parenthood group, which brought the suit.

Under the law, doctors also must tell women about abortion's potential psychological effects, such as suicide risk, and alternatives, such as adoption. Doctors in violation would face up to 30 days in jail and a $200 fine.

In the dissenting opinion, Judge Raymond W. Gruender agreed with the state's position that the law is based on science. The Legislature defined a human being as a "member of the species homo sapiens," which is adequate under abortion precedent, Gruender noted.

South Dakota Attorney General Larry Long said abortion is no different from any other medical procedure for which doctors must, under the law, disclose complete information so patients can make an informed decision.

"To say that the state doesn't have an interest or any responsibility to patients to require informed consent is contrary to settled law in a lot of areas," Long said. The state is considering whether to appeal the decision to the full 20-member court, he added.

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New abortion laws

Here is a summary of some of the abortion laws states have passed so far in 2006.

Abortion ban to replace Roe v. Wade: Louisiana (would take effect if Roe v. Wade were overturned); South Dakota (overturned by voters Nov. 7)

Counseling and waiting periods: Idaho, Michigan, Oklahoma

Parental consent: Oklahoma, Tennessee, Utah

Source: Guttmacher Institute

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