The Supreme Court recently decided the Dobbs v. Jackson Women’s Health Organization case that overturned the Roe v. Wade decision. The constitutional right to privacy that the Supreme Court said existed in the penumbra of the 14th and 9th Amendments for fifty years has been swept away. Several in South Dakota, including some major political figures, immediately called for a special session to modify South Dakota’s abortion laws even though a “trigger law” already existed that went into effect immediately when the Supreme Court reversed half a century of precedent. A special session of the Legislature costs upwards of $47,000 a day – depending on how many legislators and staff actually attend.
Governor Noem has reconsidered her position on a special session and has said any modifications of South Dakota’s abortion laws should be taken up in the next regular session of the Legislature. I think that is a wise decision. South Dakota’s abortion laws are certainly adequate; a special session would have been a gigantic waste of money and any changes in our abortion laws should be carefully considered and debated.
Texas passed a “heartbeat” law, outlawing abortion after six weeks. The American College of Obstetricians and Gynecologists in Washington, D.C. says that the fetal heartbeat isn’t really a heartbeat at six weeks. Your heart “beats” when the chambers of the heart open and close. The American College of Obstetricians and Gynecologists says that those chambers and valves haven’t developed yet and what is detected is just some electrical impulse activity and the “heartbeat sound” is actually sounds created by the ultra-sound machine itself. The College takes no position on the law other than to point out that it is not a “heartbeat” in the medically accepted use of the term.
Several studies have suggested that determining the “beginning” of a pregnancy is a dicier proposition than a layman might believe. The American College of Obstetricians and Gynecologist in Washington, D.C. says that the standard pregnancy clock really starts before a sperm encounters an egg – about two weeks before on average. That’s because an ovary releases an egg around day 14 of a 28-day cycle and doctors date a pregnancy from the first day of the last menstrual cycle. As a result, any “six week” timetable, like the Texas law, is usually only four weeks of an actual pregnancy.
There are abortion prohibitions that reference “fertilized eggs” as being “life” and “human”. Both of those descriptions may technically be true but not every fertilized egg implants in the womb. Jonas Swartz of Duke University School of Medicine says, “Fertilization does not automatically lead to a pregnancy. Equating them doesn’t make sense from a medical standpoint.” Up to 50% of fertilized eggs do not implant in the uterus according to medical researchers and some fertilized eggs end up as ectopic pregnancies that, if allowed to develop, will kill the mother and not result in an infant in any case.
Any law that references “fertilized eggs” as life may inadvertently threaten the life of the mother, as in the case of an ectopic pregnancy. In addition, any law that references fertilized eggs as life may mean some moms can’t have a biological child. That’s because invitro-fertilization fertilizes several eggs and uses only some of those eggs for desperately wanted pregnancies. Women rarely use all of the fertilized eggs in this procedure. Are the unwanted eggs protected life? If they are discarded after a woman has the number of children she desires, is she guilty of having an abortion even though those eggs were never inside her?
In the new post-Dobbs era, will every miscarriage have to be investigated by law enforcement thus adding insult to injury? Will pregnant women have to be freed from jail or prison in order to grant habeas corpus rights to the unborn inside of them? Georgia has already passed a law saying that parents can claim a fetus as a dependent on their state income tax forms for tax filing purposes. If there is a car accident where a miscarriage results, does that automatically mean the driver at fault must face vehicular homicide charges? There are several unintended legislative consequences that elected officials will have to take into careful consideration when enacting or modifying abortion legislation.
Some pro-life activists raise the issue of fetal pain when introducing modifications to existing abortion law. The Society for Maternal-Fetal Medicine studies suggest that pain sensor connections don’t begin to develop until the 24th or 25th week of pregnancy and these connections aren’t operational and capable of sensing pain until week 28 or 29. As a result, although we can’t really know for sure, the best evidence suggests that the unborn cannot feel pain until very late in the pregnancy and any “reaction” one may observe in the womb is of a reflex nature only until very late in the pregnancy. Study after study has found that 90% of abortions happen in the first trimester (12 weeks or less of pregnancy) and those abortions that happen in later trimesters tend to be of a “medical” variety; ending ectopic pregnancies, in response to severe genetic defect(s) of the unborn child – usually detectable only very late in pregnancy or to deal with a serious threat to the life of the mother etc.
The Guttmacher Institute, which surveys abortion providers in all fifty states, reports that in 2017 (the last year for which this data is available) there were 4,460 known pregnancies in girls under 15 of which 44% ended in abortion. These are cases similar to that of the sexually abused 10-year-old Ohio girl who had to travel out-of-state to get an abortion. You may recall how flummoxed Governor Noem was on national television when confronted about the specifics of this case. Governor Noem argued that a situation like that never should have happened in the first place. Agreed, but atrocious and unthinkable things do occur and the question is what will our public policy be, recognizing we live in the real as opposed to an ideal world?
The Kaiser Foundation poll found that 65% of Americans disapprove of the Supreme Court’s Dobbs decision. In addition, 69% of the country supports abortion access and half of those people live in states like Texas and South Dakota with so called “trigger laws”. Conservative Kansas just voted to reject an anti-abortion constitutional provision. South Dakota may face a similar opportunity to take a stand on the abortion issue via an initiated measure in the near future.
South Dakota doesn’t need a special session to deal with abortion. South Dakota doesn’t need any more restrictive abortion laws. What we need is a recognition that being pro-life means being pro-day care, pro-education, pro-health insurance, pro-job training for single moms and becoming an advocate for children and foster care etc. etc. Being anti-abortion needs to be more than simply being pro-birth, it needs to be truly pro “life”.
Legislation should be about reasoned, thoughtful public policy with an eye towards preventing any unintended legislative consequences; like avoiding criminalizing IVF treatments for parents desperate to have their own biological children or subjecting grieving would be mothers who lost a child in a miscarriage to criminal prosecution. Legislation should be about serious public policy rather than as a vehicle for throwing red meat to primary voters in a potential presidential run. Any proposed legislation should recognize there are two kinds of abortions – one as a means of birth control while the other is a medical procedure – and treat them accordingly. That kind of consideration and careful crafting of legislation requires the Legislature to deal with this issue in the regular run of the legislature rather than in an expensive and rushed special session. Governor Noem made the right call there. Let’s hope the Legislature treats the issue of abortion as a serious medical issue worthy of thoughtful public policy rather than as a political football trying to score partisan points.