This is the exact text of South Dakota’s current abortion law:
22-17-5.1. Procurement of abortion prohibited–Exception to preserve life of pregnant female–Felony.
Any person who administers to any pregnant female or who prescribes or procures for any pregnant female any medicine, drug, or substance or uses or employs any instrument or other means with intent thereby to procure an abortion, unless there is appropriate and reasonable medical judgment that performance of an abortion is necessary to preserve the life of the pregnant female, is guilty of a Class 6 felony.
Source: SL 2005, ch 187, § 6.
Commission Note: This section was made effective by the United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), pursuant to SL 2005, ch 187 § 6. Section 7 of SL 2005, ch 187, as amended by SL 2005, ch 188 § 1, provides: “This Act is effective on the date that the states are recognized by the United States Supreme Court to have the authority to prohibit abortions at all stages of pregnancy.”
As you can see, there are no exceptions for rape or incest. There are no exceptions for unusual circumstances like a child dying in the womb and then ultimately being stillborn. According to the Centers for Disease Control, 1 in 175 children born in the United States are stillborn. Under South Dakota law, if that pregnancy does not threaten a woman’s life she must carry to term and deliver her rapist’s child, a stillborn child, or a child with a malady or deformity certain to kill the child shortly after birth. There are other medical conditions, like an ectopic pregnancy that doctors know will be dicey for a pregnant woman, but they are powerless to act until the moment a mom is in real danger of losing her life. South Dakota claims to be “pro-life” but their abortion policy puts women’s lives and fertility at risk.
Imagine being the victim of rape or incest and having to carry your rapist’s child to term. The victimized woman has to go through the physical changes that pregnancy brings, bearing all of the medical and emotional costs of a pregnancy daily as well, for nearly a year. As she begins to show, the woman has to constantly respond to the delighted questions, comments and well-meaning congratulations of others about her condition only to tell the multitudes, “I was raped”, thus reliving the shame, trauma and terror over and over and over again.
Sometimes a pregnancy is so medically traumatic that it ends a woman’s fertility. That’s what happened to my Mother when my sister was born. My folks wanted more than two children, but a problematic pregnancy ended my Mom’s ability to have another child at the age of 26. Why should a woman be forced to give up her ability to have a family of her own so that her rapist’s child can be carried to term, put in the foster care system and hopefully adopted?
Why should a child have to bear her rapist’s seed to term? A couple of years ago, the media was full of the story of the 10 year old Ohio girl who was raped and became pregnant. The girl’s parents had to travel to Indiana because Ohio’s law would have required that 10-year-old to carry her rapist’s child to term.
A woman in Georgia, whose life was put at risk by her pregnancy, sought an abortion to preserve her own life and to have another chance at having a family. Because doctors were afraid of Georgia’s abortion law, similar to South Dakota’s, they refused to perform what they believed might be a lifesaving abortion since they were afraid of being prosecuted and being unable to prove to a court’s satisfaction that their opinion that the woman’s life was actually in danger was the correct diagnosis. The woman in Georgia died. The medical judgment of the doctors was right but their concern over the legal implications and prison time, tied their hands and ended an innocent woman’s life.
There are signs around town that say, “Amendment G It’s Too Extreme”. I’m not sure what could be more extreme than South Dakota’s current draconian abortion law that has no consideration for women and the victims of violent, repugnant sex crimes.
This is the text of Amendment G:
“That Article VI of the Constitution of the State of South Dakota be amended by adding a NEW SECTION:[3]
Before the end of the first trimester, the State may not regulate a pregnant woman’s abortion decision and its effectuation, which must be left to the judgment of the pregnant woman.
After the end of the first trimester and until the end of the second trimester, the State may regulate the pregnant woman’s abortion decision and its effectuation only in ways that are reasonably related to the physical health of the pregnant woman.
After the end of the second trimester, the State may regulate or prohibit abortion, except when abortion is necessary, in the medical judgment of the woman’s physician, to preserve the life and health of the pregnant woman.”
I believe that the “life of the mother” is more than just the ability to keep on breathing. It includes mental health as well. It includes being free of shame and the constant reminder of the violence that was inflicted upon a woman leading to her pregnancy. That definition of life also includes being able to spend your hard earned dollars on the things that sustain and enhance your life, rather than pay the medical bills incurred by a pregnancy caused by sexual violence forced on a woman.
A pregnancy impacts the entire family. How do “brothers and sisters” of the rapist’s baby explain to their friends at school what’s happening to their mother? How do men cope, with the growing evidence of their “failure” to protect the woman they love? “Life” is about more than just the single physical existence of a fetus at very early stages of development, when most abortions occur. “Life” is also about the pregnant woman and her family.
The Centers for Disease Control reports that around 80% of abortions are performed before the 10th week of pregnancy. The position of the American College of Obstetricians and Gynecologists, as well as the Society for Maternal-Fetal Medicine and the British group, the Royal College of Obstetricians and Gynecologists is that the fetus is incapable of feeling pain until the 24th week of gestation.
I served in the Legislature for a dozen years. We had emotional debates and bills concerning abortion almost every one of those twelve sessions. The Chief Justice of the South Dakota Supreme Court, George Wuest, lived on west corner of my block and I lived on the east corner. In the 1990’s, the abortion debate got so hot that the Chief Justice and I received death threats. The South Dakota Highway patrol parked a car on our street for a time as a warning to crackpots who might be tempted to do violence.
I saw grown men in the South Dakota State Legislature cry sincere tears over the lives of the unborn. I saw those same men on the very next bill, vote to deny children expanded Medicaid health coverage or daycare as well as cut Aid to Families with Dependent Children (as it was called then). I have a hard time reconciling a “pro-life” position on abortion with the callused abandonment of those children once they’re born.
An actual pro-life person is an adoptive or foster parent. A real pro-life person rejoices in programs to uplift, support and care for children. A true pro-life person doesn’t begrudge the tax dollars that go into these health, nutritional and educational programs for children and their families.
The question for South Dakota voters is simple, is the current law just and fair? Does it take into consideration the rights of all involved and acknowledge the various medical and legal circumstances that may apply? Does South Dakota’s law create an unrealistic physical, medical, financial and emotional burden on women in a myopic way? Does the South Dakota law protect life, not just the lives of the unborn but the lives, mental and physical, of the women bearing those children as well? If South Dakota’s law is too rigid, cruel and without exception, then is it time for Amendment G?
My view on abortion is simple. It is akin to amputation, in my opinion. I wouldn’t want my doctor to suggest amputation as a routine procedure, but if I was afflicted with flesh eating disease or gangrene or trapped like Aron Lee Ralston who had to cut off a part of his right arm to survive (see the movie 127 Hours that chronicled his ordeal) then I’d like to have amputation as an option. I think that decision is mine, in consultation with my doctor, and not the province of the State of South Dakota. In my analysis, that same philosophy applies to a woman’s decision to have an abortion as well.
I’ll be voting for Amendment G.