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HB 1217 Gives Unchecked Power to Anti-Abortion Advocates

Last updated on 2013.02.14

Here's an angle of House Bill 1217 that escaped my attention until today. SDPB's Vicky Wicks interviewed Dr. Michael Fenner, a constitutional law expert at Creighton University, on the ramifications of the abortion restrictions awaiting Governor Dennis Daugaard's signature. Dr. Fenner pointed out that while House Bill 1217 requires women to obtain counseling from an anti-abortion crisis pregnancy center, it does not require the CPC to schedule that counseling session in a timely fashion.

Now suppose you devoutly oppose abortion. You think it is the murder of a child. You want desperately to stop every abortion and save every baby. You are willing to use any legal means available—protest, persuasion, prayer—to save those babies.

And now the state says that for a woman to get an abortion, she must first certify that she has had a conversation with you. She has to wait 72 hours from her first meeting with her doctor, but once she can certify in writing that she's consulted with you, she can kill that baby.

Nothing in the statute requires you to schedule that consultation within the 72-hour waiting period. The woman calls your CPC, and you can say, "Oh, sorry, we're all booked up. We can't see you until next week." You can book the woman for a week from Thursday, maybe later. You can bring her in, have your staff hand her some literature, get some CPC volunteers to pray conspicuously in the waiting room or just look at the woman with deep Christian pity, but then have an assistant announce, "Oh! Sorry, the counselor we scheduled can't make it in today. Maybe it's a sign from our baby-loving Lord Jesus. Can we reschedule your counseling for next week?"

And so on, and so on, until it's too late to have the abortion. Mission accomplished.

Yes, this scenario assumes that abortion foes are sneaky, deceptive devils. But we write laws with the assumption that sneaky, deceptive devils will take advantage of loopholes and poorly crafted laws... just as abortion foes have crafted HB 1217 under the assumption that women are emotional, irrational, irresponsible creatures who must be forced to listen to lectures on why what they are doing is wrong, wrong, wrong. If Rep. Roger Hunt and Sen. Jason Frerichs can make that negative assumption about every woman in South Dakota, I can make a similarly negative assumption about the anti-abortion CPC staffers who are highly motivated to carry out their moral agenda... and whose power to interfere with a woman's constitutional right to obtain an abortion is wholly unchecked by HB 1217.

That kind of absolute power isn't just unconstitutional; it's unconscionable.

Governor Daugaard, do you really want to grant such unrestrained power to uncertified counselors... or to anybody? Keep thinking, Governor... the right answer is veto.


  1. Al Novstrup 2011.03.16

    Alpha Center, a Sioux Falls pregnancy care center, takes clients with or without appointments. They take walk ins. There are 10 or more pregnancy care centers in the state, so getting an appointment will not be a problem.

    Talk to a counselor for a few minutes and wait for 72 hours before making one of the biggest decisions of your life. Sound reasonable.
    Planned Parenthood charges $500 per abortion. 250,000 abortions times $500 per abortion = $125, 000,000. Pregnancy care centers counsel for free. Follow the money.

  2. caheidelberger Post author | 2011.03.16

    Senator Novstrup, I think you miss the point. HB 1217 includes does not enforce that timely appointment policy. It gives Leslee Unruh a legal tool that she could use to block every abortion in the state. HB 1217 puts complete, unchecked trust on the CPCs, no trust in women, and complete legal liability on physicians. If "informing" (you mean "persuading," but I'm using your side's spin) these women is so important, why did you include so little language in the bill to ensure these women get accurate, timely information?

  3. Shane Gerlach 2011.03.16

    Senator Novstrup who is paying for the counseling certifications for each other volunteers? Who is guaranteeing they follow HIPPA laws when they are not held to them being only volunteers? Where is the language in the bill for circumstances such as rape, incest or the immediate threat of life on a mother by the pregnancy?
    Senator Novstrup where is the money coming from to pay for the lawsuits (plural) that will follow if the governor signs this bill? Why would you back an illegal bill that by the governors own admission could cost between 1.7 and 4 million dollars to defend when your own party is screaming how broke the state is thus necessitating a 10% cut in medicaid and education?
    Senator Novstrup why would you go against the voters of South Dakota who have twice spoken on this issue?
    Senator Novstrup who made you God over these women?

    I would honestly like the answers. My own representatives down here (Nick Moser and Jean Hunhoff) refuse to answer except for to tell me "It's not such a bad bill."-Moser
    "I truly believe this bill is not that bad."-Hunhoff
    So I would like to see if you will just spew rhetoric or if you will answer the questions I am asking.

    Thank you

    Shane Gerlach

  4. Troy Jones 2011.03.16


    I think you bring up a good point. When the bill was introduced, I mistakenly thought this would be something both sides could rally around and, if needed, make better to fulfill its intent- insure a woman had both more complete information and an outlet for removing any coercion being applied by the father, her parents, etc. who have a motive which may be different than the mother. I really thought those who call themselves "pro-choice" would understand choice means freedom from undue coersion from those who have real influence on the mother. But, making the bill better was not to done.

    In a spirit of full disclosure, I'm opposed to elective abortion and want it to no longer be available. For me, the battle is more than laws of prohibition but for the hearts and minds of people (pregnant mothers and those who support the current situation) as well as working within the limits of current law to make abortion more rare as many "pro-choicers" say they too want.

    To your point, I think the Governor should sign the bill as written, inform all pregnancy crisis providers the intent of the law is for them to be readily available during the 72 hour period, and if they abuse the intent it will be tightened up in the future.

    Rather than the cynical attitude you describe about the Alpha Center and Leslee, my guess is they will proactively make themselves even more available vs. what you hint. In the battle for the hearts and minds of the mother, saying you aren't available will not endear them personally or to what they say. Agree or disagree with her views, Leslee is a very kind person who has operated within an environment requiring persuasion to accomplish what she has. In fact, for one who opposes her, she will be more proactive and available than you will desire.

    My guess: it will be rare a mother will not be able to meet with someone that very day, almost always within the 72 hour period, and only outside the 72 hours when there are extenuating circumstances.

  5. Rachel 2011.03.16

    While I can appreciate Cory pointing out another flaw in the poorly written bill, the fact remains that I shouldn't have to see Leslee or her cohorts if I don't want to - EVER (altho, I did see her on a plane once - in 1st). Requiring me to listen to some volunteer preach to me about their personal religious beliefs is a ridiculous, and quite insulting, attempt to prevent me from having an abortion.

    BTW - there is no money to be made here. PP is a non-profit. Trust me, the IRS makes sure they are not making money on abortions.

  6. Troy Jones 2011.03.16

    Rachel, nothng I'm saying is intended to make a value judgment on the financial information available to the public about PP. This is a clinical analysis of what is available but I'm trying to make this as non-accounting wonkish as I can. An accountant reading this could take some exception with the words I'm using and constructs but the accountant wouldn't agree with the main point.

    Being organized under the 501 (c) 3 section of the IRS code only means they are not required to pay most taxes on any profits they make on any commercial endeavor they are engaged in. Organizations under this designation must be Religious, Educational, Charitable, Scientific, Literary, Testing for Public Safety, to Foster National or International Amateur Sports Competition, or Prevention of Cruelty to Children or Animals Organizations.

    I believe PP is organized as a Educational entity. Such entities are allowed to conduct certain commercial activities and use the "direct profits" to further the goals of the organization as allowed by the IRS. Instead of providing abortions, they could sell blankets for a direct profit and still not pay taxes so long as the profits are offset by expenses allowed purposes under IRS rules.

    When you look at one of the local affiliates (which actually perform abortions) income statement (form 990) filed with the IRS and public information, most of them do not make a consolidated profit. However, many of their commercial enterprises (abortion and other clinical testing, etc) must be profitable as they often have significant non-revenue generating activities (ala free testings) that impact the profits.

    Maybe you have access to financial information the public doesn't. But, if you don't, there is nothing in the IRS rules which would prevent the abortion part of the business from being profitable so long as the total organization isn't profitable. Furthermore, there is significant evidence providing is abortins likely are profitable. Their free pregnancy screening and condoms certainly isn't profitable.

    Or, providing abortions may be as you say and unprofitable and the other clinical services are profitable.

    I don't know, don't have access to the information, and it isn't inherently a violation of IRS rules for abortion services to be profitable (there are limits in the law. In this case I suspect, clinical operations as a whole can't be consistently profitable over time). And, I suspect you don't know either.

    But whether fees collected from those who use their services vs. the costs of providing it is a narrow way to look at the matter. Let me give you an example:

    Suppose a 501c3 is organized to sell houses to the poor (similar to Habitat for Humanity). They costs to build the house is $50K and they sell it to the poor person based on income for $25K, the building of the house shows a loss of $25K. However, the donations from people to build the house were $30K, the "profit" was $5K. No tax is due on the excess donations.

    This is very similar to the PP business model. Because of the services they provide they recieve tax-exempt donations which in most if not all years result an increase of the organizations Net Assets (this is 501c3 language for Net Equity for a business which usually come from profits).

    If they quit providing abortion services, a portion (and probably a signficant portion) of the donations would would not be recieved and Net Assets (or Net Equity) would decline.

    Bottom line: The combination of fees for abortion services plus donations to subsidize abortions is almost assuredly in excess of the costs of providing abortion services, thus abortion services are profitable (regardless of PP's tax status).

  7. Shane Gerlach 2011.03.16

    It is not counseling if I am just telling you what my beliefs are, it's a lecture. There is currently counseling available to those women that want it. Period. To force someone into counseling because of your beliefs over their own is not what I believe our system is fundamentally about.

    What if the bill was forcing pregnant women to listen to satanist "counseling" them to have abortions? Would that bill pass? I know that is outlandish and worst case scenario to many of you, but what about the non-christian woman seeking an abortion? Why is the state forcing christian beliefs on that woman who is already making a hard decision? Wasn't this country in part founded on religious freedom?

    This bill wipes out the line between church and state. This bill makes the state of South Dakota the rulers of "some" wombs.

    No it doesn't some of you say all it is is counseling, the woman can still go through with an abortion if she chooses. You are correct. But how many women won't? Does the state have facts on that? Are we forcing women to sneak around and hope for the best from "undercover" abortion clinics? Is the State forcing women to leave search out medical care in other states? Were any of these things considered?

    How many women is the state stopping from, LIKE IT OR NOT, doing something that is completely legal in this nation and state? How many lives is the state ruining? I consider an unwanted child, the child of a rape, the child of incest or the death of a pregnant woman ruined yes.

    Why is the state allowed to have this power over some of it's residents?
    I would really like someone...anyone to answer the question I have asked in my posts here. I have sent these questions and shared my feelings with lawmakers who voted yes and the Governor of our state and have either had no answer or the "it's not a bad law." answer they were all evidently taught to say.

    Full disclosure, I am a man and don't have to make the choice. My wife is pro life in her own choices as are my sister, my nieces and my mother. I am pro choice. I have no right to tell a woman what to do with her body, just as no one has the right to tell me what to do with mine so long as I am not breaking any laws.

  8. Jana 2011.03.16

    Troy, I'd be interested in your take on what the impact of defunding Planned Parenthood would be on SD.

    Seems to me it would be harmful both in terms of family planning and essential medical care for women.

    I respect your beliefs on abortion and I hope that you will have an equal amount of respect for those of us that may have some different biological capabilities than you, but you have only nibbled around the edges on the constitutionality of the bill.

    What do you think? Constitutional or not?

    Lastly, I think you would agree that any bill borrowed and written from outside of the state and introduced by Roger Hunt has little chance of gaining Pro-Choice support.

  9. Troy Jones 2011.03.17


    "impact of defunding PP" on family planning and essential medical care: Notwithstanding PP's claim it is the end of the world, I think otherwise.

    "different biological capabilities": My three daughters, wife, mother and I all agree on this matter so I have no idea why gender is always brought up to somehow disparage my credibility on the issue. In fact, I'm more likely to have a more patient and measured dialogue with you than you'd be likely to get from them.

    "Constitutionality": I'm not a consitutional lawyer but it is my understanding is no rights are so absolute reasonable requirements for the exercise isn't permitted.

    "borrowed and written from out of state": This is not rational. Many bills promoted by liberals/conservatives/betweeners get their model from other states. In fact, the most reasonable is always to borrow from the experience and case law developed vs. trying to tread new ground on every matter as it leads to the problems from unintended consequences.

    "Roger Hunt": This is classic ad hominem attack in the merits of the proposal are dismissed because of who says them. By this standard, I should never consider anything promoted by PP or its advocates and why should I even contemplate your first question and not take the position if PP is for it I'm against it? This is essentially the position you are taking with Roger Hunt.

  10. larry kurtz 2011.03.17

    I like the idea that US District Judge Lawrence Piersol has a magic wand.

  11. Jana 2011.03.17

    Thanks Troy,

    So I have you down that the defunding of PP will have no impact on women's accessibility to health care.

    On the second point I guess the point is that you have absolutely no 72 hour waiting period for any legal medical procedure you would choose to have. That's kind of the difference between having different sex organs. I also have many family and friends who are in the middle and on each side of the fringe of the debate...most of our discussions are rational and respectful.

    As far as your constitutionality comment, I have no idea what you were trying to say and maybe there were a few words left out that could have it make more sense.

    AS far as having bills written from out of state, I do not care if they are liberal or conservative, I want our state and our laws homegrown and not a part of someone's national astroturf effort that uses us as a petri dish.

    Lastly, you seem to think that I was attacking Mr. Hunt, I wasn't. I'm sure that even you can admit that he is a bit of a lightening rod whose past actions have given people pause on whether or not to trust him.

    As far as your ad hominem claim goes, you know that in some instances, the argumentum ad hominem questions of personal conduct, character, motives, etc., can be legitimate and relevant to the issue.

  12. Troy Jones 2011.03.17


    Thanks for the civil conversation.

    "no effect": I didn't say that. I'm saying it won't have the effect claimed by PP. In fact, a case can be made it will be an improvement. Not opening up to a discussion this just because it isn't the subject of this thread. When I write on the war college, I'm frustrated because of all the tangents they take.

    "72 hour waiting period": I'm wondering what medical procedure of comparable significance I could get done immediately as an abortion can be procured? I can't get a sex change that fast. If I can get a vasectomy, I shouldn't be able to (I'll join you on a vasectomy waiting period as well as requirement for consent from my wife).

    "civil conversation": My point was especially with regard to one daughter, they want to first have a full discussion of the child's life which is open to termination before she will enter into what she considers a less transcendent right. Most pro-choicers don't want to go there first if at all so the conversation doesn't go far. I'm at least willing to start with the discussion of the mother.

    "Constitutionality": My point is just that there are plenty of rights for which requirements are imposed for their legitimate exercise.

    "home grown laws": This is virtually impossible in practice because of the principles of existing case law, implications with regard to transcending law (ie consitution), etc. P.S. the astroturf reference is really tedious. Should I consider certain liberal activities as astroturf? This is essentially ad hominem where it is source that is the principal arguement against and not the merits themselves.

    "Hunt": He is a lightening rod and has brought some of it himself. As I am a civil liberty conservative and he is a statist conservative, we don't always agree in legislation and approach. I also know he is a persistent thorn in the side of the PP agenda so for political/partisan reasons I understand why there is a knee-jerk opposition to anything he proposes. However, I think for most people who want an open discussion of issues to blackball everything he says detracts from the discussion and finding policy solutions. Again, by this standard, I should blackball everything out of the mouth of PP. Is that what you desire or would you like to have a discussion as we are?

    "ad hominem": You are correct they can be legitimate but they can't be pre-eminent. Read most posts on this issue on conservative and liberal sites and you will note they too often lead and end with mention of Hunt.

  13. larry kurtz 2011.03.17

    Think of it as Marty Jackley's stairway to heaven.

  14. Anne 2011.03.18

    There sure is a lot of supposition and fairy-tale speculation thrown at this topic. all of which evades the fact that this bill is designed solely to subjugate and harass women. All the folderol in the world cannot disguise that fact.

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