The State of Reproductive Rights in South Dakota: Local and federal laws and rulings to know
By Planned Parenthood Minnesota, North Dakota, South Dakota Action Fund, Inc. | Feb. 5, 2021, 3:38 p.m.
2021 has just begun, and already we’re preparing for local and national threats to sexual and reproductive health care. This year the conservative-majority Supreme Court could get the chance to strike down Roe v. Wade. And in South Dakota new bills are already being introduced to ban and restrict abortion. These unjust laws disproportionately affect people who are already marginalized and make it harder for all South Dakotans to access the health care they need.
That’s why we’re hosting our free virtual Supporter Summit on February 9. At the event we’ll talk about federal and local laws that affect reproductive rights in South Dakota, what’s happening this legislative session, and how you can take action. RSVP Now
Before we look ahead to the fights that are ahead of us this legislative session, let’s take a look at the local and federal laws that are already in place that affect South Dakotans’ access to sexual and reproductive health care.
The state of reproductive rights in South Dakota
In South Dakota, Planned Parenthood operates the state’s only health center to offer abortion care. There are already several laws in place that restrict South Dakotans’ access to abortion services, stigmatize abortion, and cut off funding for abortion care.
South Dakota requires an individual seeking an abortion to wait three business days (not including weekends and holidays) between their consultation with the physician and their procedure. This is the longest mandated waiting period in the nation.
South Dakota currently requires that before an abortion, the physician must tell their patient that abortion ends "the life of a whole, separate, unique, living human being.” Physicians are also required to give patients dangerous information about “abortion reversal” that is refuted by the American College of Obstetricians. This law not only forces physicians to spread harmful and medically unfounded information about “reversing” medication abortions, it also shames patients for choosing an abortion.
South Dakota prohibits public funding for abortion unless the procedure is necessary to preserve the individual’s life. This means that in South Dakota, patients enrolled in Medicaid cannot use their insurance to cover their abortion procedure unless their life is in danger.
This statute conflicts with federal law (Hyde Amendment) prohibiting participating states from excluding abortion from the Medicaid program in cases of rape or incest as well as life endangerment.
Restrictions on where abortion services may be provided
South Dakota places medically unnecessary restrictions on where abortion services may be provided. Any facility other than a hospital (including a physician’s office-that provides abortion care) must become licensed as an "abortion facility" and must comply with a uniquely imposed licensure scheme not required of other medical providers.
These regulations include various personnel, sanitation, safety, and "quality assurance" requirements, many of which are not medically related. For instance, the regulations stipulate the size of procedure rooms (115 square feet) and recovery rooms (45 square feet) and dictate the types of flooring and lighting that may be used.
Federal laws & Supreme Court cases
Roe v. Wade
In 1973 Roe v. Wade affirmed the right to an abortion. But in 2021, with Justice Amy Coney Barrett solidifying a 6-3 conservative majority on the Supreme Court, Roe v. Wade is at risk of being overturned.
In 2005, the South Dakota Legislature passed a trigger law. If the U.S. Supreme Court were to overturn Roe v. Wade, this law would immediately trigger the ban of all abortion in the state except “to preserve life of [a] pregnant female.”
In 1976, Congress passed the Hyde Amendment which has blocked all federal funds from paying for abortions. There are three extremely narrow exceptions: when continuing the pregnancy will endanger the patient’s life, or when the pregnancy results from incest or rape.
This means that anyone who relies on government-funded health insurance (like Medicaid) cannot use this insurance to cover their abortion. South Dakota is the only state that provides funding only in cases of life endangerment, which is in violation of this federal standard.
Planned Parenthood v. Casey
In 1992, the Supreme Court affirmed the “essential holding” (the basic principle) of Roe v. Wade, that individuals have a right to obtain an abortion prior to fetal viability, but rejected Roe’s trimester-based limitations on abortion procedures. The Court imposed a new standard to determine the validity of laws restricting abortion.
This new (and current) standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden" on an individual. A law is invalid under this standard if its “purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”
June Medical Services v. Russo
In 2020, the Supreme Court ruled that the Louisiana Admitted Privilege law was unconstitutional and created an “undue burden” on those seeking abortion services. The Louisiana law required physicians who provide abortion services to obtain local admitting privileges at a hospital—an unnecessary regulation that restricted patients’ access to an abortion.
Learn more on February 9
This is just the beginning of the conversation around access to sexual and reproductive health care in South Dakota. At the Supporter Summit on Feb. 9 we’ll continue talking about the fights that lie ahead, the latest bills being introduced in South Dakota, and how you can get involved.RSVP Now for our Supporter Summit