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.
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.
You can read the full article at South Dakota Searchlight.