Revised South Dakota Abortion Ban Legislation Is No Improvement

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Three months ago, South Dakota voters rejected anti-abortion legislation that would have outlawed all abortions, even to end pregnancies resulting from rape or incest, or to protect the pregnant woman's health.

Lawmakers in SD responded with a revised bill that does include rape and maternal health exceptions to an otherwise complete abortion ban, but in several key ways, this bill is even worse [all emphasis mine]:

An abortion ban, similar to the previous ban that was soundly rejected by voters in November 2006, will be introduced into the South Dakota House of Representatives today. Lawmakers had announced earlier this week that a new draft of the ban would be submitted soon. The first ban was extreme, allowing for abortion only in instances to prevent the death of a woman. The revised ban, titled the "Women's Health and Human Life Protection Act," offers additional exceptions, though they are very narrowly defined.

In addition to preventing the death of a woman, an abortion may be obtained in cases of rape or incest, but the victim must report the rape to the police within 50 days, the physician must obtain a copy of the report record, and the victim must provide either the name and last known address or a description of the alleged rapist to law enforcement. Furthermore, the physician would be required to take blood samples from the woman and the fetus to be submitted to law enforcement.

There is also a health exception in order to prevent "a devastating and irreversible injury to the mother's health, which is likely to cause a very significant impairment of the functioning of a major bodily organ or system, and which is likely to cause a very significant impairment of the quality of the mother's life."

The penalties outlined in the new bill, however, are much more severe than last year's bill. Any physician who performs an abortion outside the guidelines of the bill would be guilty of a class-four felony and could face up to 10 years in jail.

Women's health advocates also find the language of the act itself alarming. Beyond outlining the limits of abortion availability, the bill offers a lengthy description of the reasons abortion should be illegal, including that "the pregnant mother's relationship with her child is inherently beneficial to the mother" and that "abortion is an unworkable method for a pregnant mother to give up, surrender, or waive her fundamental right to her relationship with her child." This is reminiscent of abortion opponents trying to couch their arguments in "feminist" language during the 2006 election.

The complete text of the bill is included in this article in Dakota Voice. (The article above the transcript is clearly biased in favor of the legislation, but it's the only place I could find the full text of the bill.)

In the case of rape or incest, doctors would have to report both the rape and the rapist's identity to the police before an abortion could be performed. In the case of incest, permission from the incest survivor would be required before the doctor could do this -- but that is meaningless in practice: the heightened emotional trauma and physical danger to the girl is the same whether she herself is forced to tell the police she was raped by a family member, or whether she is forced to give her doctor permission to give the police that information. Add in the social realities of small town life, where everyone knows everyone else, and you've just ramped up the potential harm to nightmarish levels. And in a place like South Dakota, it's nothing but small towns. So now what you've done is, you've just decreased the likelihood that a girl who is pregnant as the result of rape or incest will even step foot in a doctor's office by about a thousand percent.

This is all premised on a profound distrust of women's capacity to be responsible and ethical decison-makers. But more than that, this legislation is informed by a hostility toward women that can only be called pathological. Why force a girl or woman who has been raped to report the rape within 50 days -- or at all -- before she can get an abortion? Because maybe she wasn't raped. That's the implication. Even reporting the rape is not enough to get permission from the state to end the pregnancy. A record of the rape report must be provided to the woman's physician, a blood sample taken from the woman, and DNA evidence provided to the state -- because the chance that a woman will say she was raped when she wasn't is that high.

Supporters of this legislation are not shy about saying this straight out:

One of the 25 sponsors, Republican state Rep. Gordon Howie, said the rape and incest provisions are strict to ensure that women do not say they have been victims in order to obtain abortions.

Even if permission is granted the woman to have an abortion, the proposed legislation would require her doctor (or the doctor who performed the abortion) to take a sample of the aborted fetus's blood, and submit a DNA report to the authorities.

If you examine the language of the health exception in this bill, you find the same assumptions of malicious and mendacious intent ascribed to women, and their doctors. Not only would a qualifying health issue have to be a "devastating and irreversible" threat "likely to cause a very significant impairment of the functioning of a major bodily organ or system, and ... likely to cause a very significant impairment of the quality of the mother's life," but "a second opinion [would be] require[d] in writing from a doctor not associated with the one planning to perform the abortion."

The record-keeping, documentation, and reporting requirements to which doctors would be subject each time they performed an abortion are clearly intended to be so burdensome, and intimidating, that most doctors will choose not to perform any abortions, even for the allowed exceptions, rather than expose themselves to that level of legal liability. Especially when the consequence for being convicted of violating this proposed law is 10 years in prison.

The first 9 paragraphs of the bill are taken up with the Orwellian language mentioned in the passage from the Ms. magazine piece. Reading it chills to the marrow:

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: Section 1. The Legislature finds:

(1) That a pregnant mother possesses certain inherent rights, that these are natural intrinsic rights which enjoy affirmative protection under the Constitution of the United States, and under the Constitution and laws of the State of South Dakota, and that among these rights are the fundamental right of the pregnant mother to her relationship with her child, her fundamental right to make decisions that advance the well-being and welfare of her child, and her interest in her own health;

(2) That the pregnant mother's relationship with her child is inherently beneficial to the mother; that a mother's unique relationship with her child during pregnancy is one of the most intimate and important relationships, and one most worthy of legal protection; that the history and tradition of our nation has recognized this relationship as one that has intrinsic beauty and benefit to both the mother and the child; and that this relationship is recognized as one of the touchstones, and at the core, of all civilized society;

(3) That all induced abortions, whether surgically or chemically induced, terminate the life of an entire, unique, living human being, a human being separate from his or her mother, as a matter of scientific and biological fact, and terminate that pregnant mother's existing natural relationship with her child;

(4) That a physician performing an abortion terminates the life of one of the physician's patients to whom the physician owes a professional and legal duty, which duty is extinguished, under existing law, by the exercise of a written consent to an abortion by the pregnant mother of the unborn child;

(5) That a large percentage of the decisions made by pregnant mothers to give up their rights and interests in their relationship with their children by submitting to an abortion, are not truly informed and voluntary; that there are inherently coercive aspects to the abortion procedure; and that often the uninformed and difficult nature of the decision is seriously compounded by the practices of abortion providers;

(6) That an abortion is an unworkable method for a pregnant mother to give up, surrender, or waive her fundamental right to her relationship with her child;

(7) That in the majority of cases there is no normal or traditional physician-patient relationship or counseling between a pregnant mother contemplating submitting to an abortion and the physician who performs the abortion;

(8) That submitting to an abortion subjects the pregnant woman to significant health risks; that the abortion procedure is inherently dangerous to the psychological and physical health of the woman; that an abortion places most women at greater risk for psychological distress, depression, suicidal ideation and suicide than carrying her child to full term and giving birth;

(9) That the State of South Dakota possesses a duty to protect, and it is a legitimate exercise of the State's power to protect, the natural intrinsic rights and interests of a pregnant mother in her relationship with her child; in her ability to protect the well- being of her child; and her own health; [...]

The infantilization of women, and the phony women's health and empowerment language being used to frame what is in reality a cruel and atrocious attack on the lives and bodily integrity of every teenage and adult female in the state of South Dakota absolutely sickens me.