CHICAGO — In a victory for antiabortion forces, doctors in South Dakota are now required to tell a woman seeking an abortion that the procedure "will terminate the life of a whole, separate, unique living human being."
The U.S. Court of Appeals for the 8th Circuit last week lifted a preliminary injunction that prevented the language from taking effect. A spokesman for Planned Parenthood, which runs the state’s only abortion clinic, said doctors will begin reciting the script to patients as early as this week.
On another front, South Dakota voters will be asked in a Nov. 4 referendum to consider broad limits on abortion for the second time since 2006. The ballot measure includes exceptions for rape, incest and the woman’s health that were not part of the 2006 wording rejected by voters.
Antiabortion forces in South Dakota have been trying for years to halt the procedure and to build a winnable challenge to Roe v. Wade, the 1973 Supreme Court decision legalizing abortion nationwide.
A law that took effect July 1 requires doctors to ask a woman seeking an abortion if she wants to see a sonogram of the fetus. About 700 abortions are performed in South Dakota each year.
The doctors’ script that officially took effect Friday has been tied up in court since 2005, when Planned Parenthood challenged a law that instructed physicians what to tell abortion patients. Under the law, doctors must say that the woman has "an existing relationship" with the fetus that is protected by the U.S. Constitution and that "her existing constitutional rights with regards to that relationship will be terminated." Also, the doctor is required to say that "abortion increases the risk of suicide ideation and suicide."
The message must be delivered no earlier than two hours before the procedure. The woman must say in writing that she understands….
The measure on the SD ballot in November, Initiative 2-7, would ban all abortions except for those:
in which the pregnancy results from rape or incest, provided the abortion occurs prior to the end of the 20th week gestation and the physician reports the rape or incest to law enforcement, identifying the woman and the perpetrator if possible; or
where the abortion “is necessary to avert the death of the pregnant woman”; or
where the abortion “is necessary because there is a serious risk of a substantial and irreversible impairment of the functioning of a major bodily organ or system of the pregnant woman should the pregnancy be continued.”
This initiative is the second attempt by anti-choice forces in the state, where voters in 2006 rejected a proposal to ban abortions with no health, rape or incest exceptions.The strategy behind the new proposal is laid out in a chilling memo from anti-choice strategists as the best way to overturn Roe and Casey. The key to their approach is grounding the initiative in a "legitimate exercise of the State’s power to prohibit abortion in order to protect, not just the life of the unborn child, but the interests, rights and health of their pregnant mothers." (p. 8) In other words, to protect women from the "severe depression and loss of esteem [that] can follow" an abortion, as the Supreme Court declared in Gonzalez v. Carhart, 127 S. Ct at 1634.
This new "woman protective abortion amendment" strategy, to use Reva Siegel’s phrase, is where the anti-choice movement is heading, and the SD vote in November is the tip of the spear. Reva has an article forthcoming in Duke Law Journal tracing the political history of the strategy, from pregnancy "counseling centers" to government reports to legislation.
If the SD initiative passes, we will see similar laws pop up around the country. And four years from now, give or take, we may see five Justices of the Supreme Court uphold it.