(C) South Dakota Searchlight
This story was originally published by South Dakota Searchlight and is unaltered.
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Divide remains on clarity of abortion exception after state releases video • South Dakota Searchlight [1]
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Date: 2024-09-05
A new state government video intended to clarify South Dakota’s only abortion exception has not settled disputes over whether the exception’s legal language is clear enough.
Nancy Turbak Berry chairs the Freedom Amendment Coalition. The group supports Amendment G, a question on the Nov. 5 general election ballot that would legalize abortion in the state. She said the new video is not enough to help physicians, because the video is “ambiguous” and includes disclaimers that the information presented is “not legal advice” and “not legally binding.”
“It doesn’t solve anything,” Turbak Berry said. “The whole problem that prompted this is legal, not medical. Doctors didn’t need a video to tell them medically what the standards would be — they’ve known for decades. They needed legal guidance.”
The South Dakota Legislature and Gov. Kristi Noem passed a bill during the 2024 legislative session requiring the state Department of Health to create a video that clarifies the state’s abortion exception and how it should be applied. The department published the video this week.
The South Dakota Department of Health’s video about the state’s abortion exception.
South Dakota state law bans abortions except when “necessary to preserve the life of the pregnant female.” Violators of the law can be charged with a felony.
Since the abortion ban was triggered after the U.S. Supreme Court’s Dobbs decision in 2022, some physicians across the state have said the law is not clear enough, and that it could be interpreted as only allowing an abortion when a patient’s life is actively in danger, like when a patient is bleeding out in the emergency room.
Department of Health Secretary Melissa Magstadt said in the video that abortions are illegal when “the sole intent is to end the life of the unborn child.” A patient does not need to be “critically ill or actively dying” to terminate a pregnancy, she said.
A patient might need to terminate a pregnancy for a variety of health complications, though Magstadt said in the video that such instances are “very rare.” The video lists several examples when a physician can intervene to terminate a pregnancy, including severe preeclampsia, infection, kidney disease and other life-threatening conditions.
The video was made in consultation with medical and legal experts, including practicing OB-GYNs and the Attorney General’s Office, the department told South Dakota Searchlight.
Video lays out medical advice
If a life-threatening complication occurs beyond the point of “fetal viability,” which is around 23 to 24 weeks, there is “no question as to management,” Magstadt said in the video, adding that the baby should be delivered and should be given appropriate care along with the mother.
A “maternal-fetal separation” before the point of viability due to a life-threatening complication is legal, Magstadt said in the video, “when the foreseen but unintended consequence is neonatal death.”
“The key for a physician to ensure they are practicing within the bounds of the law is to document their decision-making process and how that led to their recommended course of treatment,” Magstadt said in the video.
Retired Chamberlain OB-GYN Patti Giebink has been outspoken since the Dobbs decision about her opinion that providers are able to adequately care for their patients within the current exception. She said if a physician treats a patient for a life-threatening illness — like cancer or infection or miscarriage — the death of the fetus would be a secondary effect of treatment and wouldn’t be intentional.
“If you don’t take care of the patient, it’s malpractice,” Giebink said.
Giebink spoke in support of the informational video during the legislative session, and she told South Dakota Searchlight the video “exceeded” her expectations.
“It should put to rest a lot of the questions in many doctor’s minds about practicing obstetrics,” she said.
‘Line is still fuzzy,’ doctor says
While Magstadt said the conditions listed in the video are “very rare,” Sioux Falls-based OB-GYN Amy Kelley sees such conditions frequently, she said, since complex and high-risk pregnancies are often sent to providers in the state’s largest city.
The video does not address Kelley’s primary concern: whether physicians can refer patients to out-of-state abortion resources if the patient wants such resources. Under state law, it is illegal to “procure” an abortion for someone.
The video also doesn’t touch on life-threatening mental health conditions or fatal fetal anomalies.
“I don’t know if I can refer people. The line is still fuzzy with certain conditions,” Kelley said. “It leaves a lot of people out in the cold, like people with fatal fetal anomalies. I don’t think it changed much of anything.”
The video did not alleviate concerns about legality, Kelley said, especially when a patient’s medical condition would be considered life-threatening enough for intervention.
“It’s just going to take one prosecutor, one county state’s attorney to think ‘I don’t think that person waited long enough’ or to think it wasn’t really life threatening,” Kelley said. “When you’re talking about a career-ending felony, you can understand why physicians are scared.”
Kelley co-chairs a group of doctors supporting Amendment G.
Giebink said she didn’t hear any conditions listed in the video for which a patient would have to leave South Dakota to “be taken care of.”
How the video impacts the upcoming election
The video leaves doctors “in the same position they were before,” Turbak Berry said.
“It’s clearly just a press relations piece promoted and, for the most part, facilitated by and serving Right to Life people to try and give them cover leading up to the election,” Turbak Berry said.
Sioux Falls Republican Rep. Taylor Rehfeldt introduced the bill requiring the video last legislative session, after failed efforts to expand the exception to include the health of the mother. She told South Dakota Searchlight in a written statement that the video provides “clear and concise guidance” to physicians.
“As we approach the November election, I believe it’s important to highlight that the ballot measure to legalize abortion is too extreme,” Rehfeldt said. “The video helps clarify how we can protect women without resorting to extreme measures, while also ensuring that healthcare remains safe and compassionate for both moms and babies.”
A lawsuit attempting to invalidate the ballot measure is currently in court, but the case is not likely to be decided by the time early voting begins on Sept. 20. South Dakota is one of 10 states with abortion questions on ballots in the general election.
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