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South Dakota governor proposes stricter rules for medicine-induced abortions

South Dakota Gov. Kristi Noem speaking from lectern
South Dakota Gov. Kristi Noem speaks at the Family Leadership Summit in Des Moines, Iowa, in July.
(Charlie Neibergall / Associated Press)

South Dakota Gov. Kristi Noem is pushing new rules for medicine-induced abortions that would be among the most restrictive in the country, but a legislative committee on Monday withheld its approval until it could get more information on the proposal.

The state Department of Health’s proposed rule would add further requirements for women to get abortion pills, including that they visit a doctor a third time and be within their first nine weeks of pregnancy.

Only Texas has an earlier ban on abortion medication, according to the Guttmacher Institute, a research organization that supports abortion rights. South Dakota’s rules proposal has been criticized by abortion rights advocates as unconstitutional and an overreach of the governor’s executive power.

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The Republican governor initiated the change through an executive order, arguing that restrictions on abortion pills are necessary for the safety of women. As the U.S. Supreme Court has reexamined Roe vs. Wade, the 1973 decision that established a nationwide right to an abortion, it has spurred a flurry of state-by-state skirmishes over abortion access. Noem has made it clear she eventually wants abortion outlawed.

Her executive order came amid the U.S. Food and Drug Administration permanently eliminating a long-standing requirement that women pick up abortion medication in person. In South Dakota, about one-third of abortions have been performed with drugs in recent years.

“Medication abortion is incredibly safe and effective,” Dr. Sarah Traxler, the chief medical officer of Planned Parenthood North Central States, wrote in a letter to the South Dakota Department of Health.

She added that the FDA has acknowledged complications are “extremely rare,” but that the proposed rule makes it more likely that patients wouldn’t be able to return to Planned Parenthood’s clinic — the state’s lone abortion clinic — to take the second drug.

That would hurt the Department of Health’s goal of “protecting the health and safety of South Dakotans,” Traxler argued, as well as create an unconstitutional violation of the right to an abortion.

However, Lynne Valenti, a deputy secretary for the Department of Health, called medication-induced abortions “a potentially dangerous procedure that is ending the life of an unborn child.”

State law already requires women seeking abortion pills to meet with a doctor twice, go through at least a three-day waiting period before receiving any of the drugs, and receive a written statement that it might be possible to stop the abortion before taking the second drug — an assertion that medical experts say is dubious.

The Department of Health’s proposed rule would require a third doctor’s visit where a woman would be monitored as she takes the second drug.

“Until we can make abortion completely illegal in this state, we better do what we can do to make sure that pregnant mothers are at least protected,” said Republican Rep. Jon Hansen as the Legislature’s Rules Review Committee debated approving the proposal.

But the proposal failed to clear the committee Monday when lawmakers deadlocked in a 3-3 vote. Two Democrats voted against the proposed changes, arguing that passing them through executive rules, rather than legislative debate, sets a bad precedent. They were joined by Republican Sen. Timothy Johns, who said he opposed approval because it was not clear whether requiring a third visit was necessary for an abortion seeker’s safety.

With the committee deadlocked and unwilling to send the Department of Health’s proposal back to the agency for revisions, the proposed rule is stuck in committee. That brought up the possibility of the Department of Health skipping to the next step in codifying rules — filing them with the secretary of state — without the legislative committee’s approval.

But lawmakers both opposed and in favor of the rule said they wished to avoid seeing rules take effect without the Legislature’s approval. Instead, they decided to take another look at the proposed rule next month and have requested the Department of Health to show whether it is necessary for a woman to take the second round of abortion medication at a clinic.


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