A government video would explain when abortion is legal in South Dakota

KFF Health NewsFeb 27 2024

South Dakota lawmakers want state officials to create an educational video to help doctors understand when they can end a pregnancy without risking prison time under the state's near-total abortion ban.

It's an example of how states are responding to the national controversy over what exceptions to abortion bans actually mean. Critics point to reports of women developing dangerous complications after hospitals in states with strict abortion laws refused to terminate their pregnancies.

South Dakota legislators are moving a bill that would direct the state Department of Health to work with the attorney general and health and legal experts to create educational material, including a video, and publish it on its website.

The legislation is the first of its kind in the country, according to Susan B. Anthony Pro-Life America, an anti-abortion group.

The bill says the video would explain how South Dakota law defines abortion. Republican Rep. Taylor Rehfeldt, who introduced the bill, said treatments for miscarriages or an ectopic pregnancy —when a fertilized egg implants outside the uterus — do not count as abortions, and therefore are allowed.

The video would also discuss conditions that can threaten the life or health of a pregnant woman, and the criteria that providers might use to decide the best course of treatment. Rehfeldt said she expects the video to address when these medical conditions may need to be treated with an abortion, including how sick a patient needs to become.

Rehfeldt, a nurse anesthetist with a personal history of high-risk pregnancies, said she introduced the bill after hearing from health care providers who want guidance about the state's abortion law.

"They said that they were confused and not sure when they can intervene," Rehfeldt said. "I think it’s important that we provide that clarification because we all want moms to be taken care of."

South Dakota has one of the nation's strictest laws, prohibiting abortions unless they're needed to save the life of a woman. There are no exceptions for preventing serious injury to the mother or in cases of fatal fetal anomalies, rape, or incest. Providing an illegal abortion is a felony that can be punished with two years in prison.

The state also has high rates of infant and maternal mortality, especially among Native Americans. Some South Dakota women have already been harmed because of the law after they were denied or received delayed abortions, according to Amy Kelley, an obstetrician and gynecologist in Sioux Falls.

Rehfeldt is confident her bill will pass the Republican-controlled legislature because the proposal has support from the governor's office, health department, one of the state's largest hospital systems, and state and national anti-abortion groups.

Anti-abortion advocates support the bill even though some groups, such as the Charlotte Lozier Institute, say exceptions to abortion bans are already clear. The group says state laws use language such as "reasonable medical judgment," terms that hospitals should understand since such standards are often used in malpractice cases.

"Abortion activists have spread the dangerous lie that pregnant women in states with pro-life laws cannot receive emergency care," Kelsey Pritchard, a South Dakota-based official with Susan B. Anthony Pro-Life America — which is affiliated with the Lozier Institute — said in a news release. "This patently false allegation that is used to justify the abortion industry's agenda for no limits on abortion is putting women's lives in danger."

But abortion rights advocates say many doctors are afraid to provide critical care because of vaguely worded exceptions to abortion bans. Many say the only way to protect providers and their patients' health is to repeal bans.

Nisha Verma is an OB-GYN in Georgia, where abortion is generally banned once fetal cardiac activity can be detected, typically around six weeks. Verma, who has provided abortions, is also a spokesperson for the American College of Obstetricians and Gynecologists.

"I understand the desire to grasp for anything that helps us provide care for our patients," Verma said. But "there’s no way that you can create a video that talks about any type of inclusive list of conditions where you can and can’t provide care."

Several other states have tried to clarify exceptions to their bans, but the South Dakota bill is the most comprehensive, Pritchard said.

In Oklahoma, the attorney general's office sent a memo on the subject to prosecutors and police. It said doctors should have "substantial leeway" to provide lifesaving abortions, and don't need to wait until a patient is "septic, bleeding profusely, or otherwise close to death." The memo also says doctors should be prosecuted only if there's evidence of criminal intent or a pattern of similar behavior.

Kentucky's attorney general wrote an advisory opinion on the topic; Louisiana's health department published a rule listing "medically futile" fetal conditions that can legally justify an abortion. Texas lawmakers added protections for doctors who end ectopic pregnancies or pregnancies of patients whose water breaks too early for the fetus to survive. The legislation does not use the word "abortion," and lawmakers eschewed publicity as they were passing it.

Texas' Supreme Court, lawmakers, and several pro- and anti-abortion rights advocates have all asked the state's medical board for more guidance. The board must respond by mid-March as to whether it will do so, according to the health care publication Stat.

Abortion rights supporters are divided about the value of supplying guidance on exceptions to the abortion law.

"I wish we weren't having this conversation," said South Dakota Rep. Oren Lesmeister, a Democrat. "I wish we wouldn’t have had the trigger law" that banned most abortions.

But given that the law does exist, Lesmeister decided to co-sponsor and vote for the bill in hopes it will help doctors and their patients.

Critics of the legislation include the ACLU of South Dakota, the regional Planned Parenthood organization, and the Justice through Empowerment Network, a South Dakota abortion fund.

Verma and Kelley, the obstetricians, said laws, videos, and other guidance can't capture the complexity of when an abortion may be necessary.

For example, conditions that aren't fatal on their own can become deadly when combined with other complications, they said. Then there's the question of when situations become life-threatening, which can happen quickly in obstetrics.

"There’s not a line in the sand where someone goes from being totally fine to acutely dying," Verma said.

Verma and Kelley said doctors use their own expertise but also take their patients' views into account when responding to life-threatening situations. That's because one patient who learns they have a 25% risk of dying might decide against continuing their pregnancy, while another might view it as a risk worth taking, they said.

Some patients are willing to die if it means their baby will live, Kelley said, and "we honor their choice even if we don’t always think that that’s the right choice."

Rehfeldt said she understands the concerns outlined by Verma and Kelley. But she said her bill would give doctors and hospital attorneys confidence to distinguish between legal and illegal procedures.

"If you have an interpretation that’s coming from collaboration with the attorney general, as well as the pertinent medical professionals, as well as the current governor’s office, I don’t see how you would be worried about being charged with a crime," Rehfeldt said.

Kelley said it's difficult to feel assured by any abortion-related guidance from South Dakota government officials when it feels as if they don't trust doctors. For example, she said, lawmakers required abortion providers to share information with patients that can be opinionated and misleading.

"So, it’s really hard for them to then say, 'Oh, but trust us, you won’t get in trouble with this law, we’ll go with your judgment,'" Kelley said.