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Judge Schreier: South Dakota Seeks One-Month Abortion Waiting Period

The freedom-, law-, and woman-loving blogosphere has raised quite a ruckus over the 72-hour waiting period South Dakota wants to impose on women seeking abortions, a law quite sensibly blocked Thursday by Judge Karen Schreier.

Imagine the outcry if the South Dakota Legislature had made clear that it was really imposing a one-month waiting period.

From Judge Schreier's injunction:

With regard to whether the 72-Hour Requirement constitutes a substantial obstacle, plaintiffs argue with supporting evidence that women could be forced to wait up to one month between their initial consultation and the abortion procedure if the same physician is required to conduct both the initial consultation and the abortion.... This is because there is only one clinic in South Dakota, which provides abortions one day a week on average.... And the three to four physicians who perform the abortions take turns flying into Sioux Falls about once a month. Defendants argue that such a delay will not occur because there is no requirement that the initial consultation be performed by the same physician who performs the abortion.

Section 4 of the Act states that "no physician may... perform an abortion, unless the physician has fully complied with the provisions of this Act and first obtains from the pregnant mother, a written, signed statement setting forth all information required by subsection (3)(b) of Section 3 of this Act." Defendants' argument that "the physician" actually means "a physician" is without merit because when a statute is "not ambiguous," "[i]t is to be assumed that [the statute] means what it says and that the legislature has said what it meant." [Kreager v. Blomstrom Oil... SD 1980]. Such an alteration is therefore beyond the court's authority [Judge Karen Schreier, United States District Court, District of South Dakota, Southern Division, Memorandum Opinion and Order, Civ. 11-4071-KES, Document 39, 2011.06.30].

Judge Schreier's finding that the waiting period imposed by House Bill 1217 is effectively one month, not 72 hours, is only one small part of the ruling against the state. But the ruling makes clear that the defendants—i.e. our own governor, attorney general, and secretary of health—either don't understand or are misrepresenting the text of their own law.

p.s.: Governor Daugaard apparently didn't think much of his own defense: he tells the press the injunction didn't surprise him... but then tries to manufacture the impression that everyone thinks the bad law he signed is a good idea.

pp.s.: An eager reader notes that Rachel Maddow included Judge Schreier's "withering scorn" for HB 1217 in last night's roundup of a trio of women's rights victories brought to us in the last couple days by two sensible judges and one sensible jury:

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  1. Bob Ellis 2011.07.02

    It isn't the legislature's fault nor is it the state of South Dakota's fault that Planned Parenthood only slaughters children one day of the week. There is no law stopping them from being open for their bloody business more than one day of the week. (Or is it really about the money, hm?)

    Sorry, you don't get to blame things that abortionists are doing on people who are trying to save innocent human life. No sale.

    Try worrying about the right of a human being to LIVE for once, eh?

  2. Guy 2011.07.02

    Bob, the voters clearly spoke in 2006 on this issue. It is between a woman and her God. It is her body, not yours, so it's not your decision.

  3. caheidelberger Post author | 2011.07.02

    Bob and the anti-abortion crusaders just don't get the import of Judge Schreier's ruling. The question is not the morality of abortion. The question is the proper scope of government power. Everything Bob says is a red herring.

  4. Guy 2011.07.02

    That's what I've been trying to assert Corey, that this law is another government attempt at regulating a woman's body for her. It's her body and it's her decision.

  5. Bob Ellis 2011.07.02

    Guy, the voters and the Supreme Court clearly spoke on the issue of slavery in the early to mid 1800s. We should have left black Americans to be slaves in the South, then, right?

    Please, try to use your brain for once instead of your darkened heart.

  6. Bob Ellis 2011.07.02

    No, Cory, pro-life people get the import of "Judge" Schreier's ruling quite well. It is you who fail to appreciate the moral bankruptcy of it. To you, truth is a "red herring" because it interferes with your liberal fantasy of zero moral accountability.

    Every single law we have is based on morality. You cannot separate law from morality. And you cannot separate the killing of an innocent human being from the murder that it morally is.

    We all know very well what the proper scope of government power is, and it is elementary to anyone with a functioning conscience. Thomas Jefferson spelled it out quite succinctly some 200 years ago:

    "The care of human life and happiness and not their destruction is the first and only legitimate object of good government.”

  7. Guy 2011.07.02

    You are doing it again. I just read your commentary on Dakota Voice about equating the very personal issue of government regulating a woman's body to that of how society (in your opinion) treats actual murderers. I believe that commentary was so generalized in its approach it lacked credibility. 1) Bob, you attempted to equate to issues that have no relation to one another and 2) You make the generalized assumption that society as a whole values the lives of these murderers in prison more than the babies. So, Bob, you basically made the same mistake some of our elected officials make in Pierre: trying to show how your opinion matters more than anyone elses. Now...

    you throw out yet another red herring (as Corey had asserted earlier). This stinky one is trying to equate the issue of slavery with government regulation of a woman's body. Bob, are there anymore red herrings in that fishing box of yours?

  8. caheidelberger Post author | 2011.07.02

    Enough, Bob, with your childish attempt to delegitimize Judge Karen Schreier with your futile and petty quote marks. She is a judge. There is no doubt about that. And none of your prefab talking points address any of the specific points of law Judge Schreier makes in her ruling. If your people go to court and scream the things you are screaming here, you will achieve nothing.

  9. Bob Ellis 2011.07.02

    Guy, is there really no hope for you? Are you really intellectually or emotionally incapable of understanding an issue this important?

    Are you really unable to grasp the immorality and injustice of providing an average of 12 years for a convicted murderer--convicted--to avoid death, while finding it insufferable to grant an innocent child a mere three days for its mother to examine all available evidence before making an irrevocable decision to end the child's life?

    Are you also incapable of discerning the difference between what you call an "opinion" and the scientific facts that I so clearly outlined--facts which point conclusively to the humanity of the child you so callously seek to quickly destroy?

    If I was that intellectually deficient, I think I'd refuse to say anything at all in public, and perhaps sue my school for having wasted my time and money.

    If I was that morally bankrupt that I could not clearly discern the inconguency of affording a convicted murderer laughable amounts of time to avoid justice while rocketing zealously along in pursuit of killing innocent children, well, I think I'd sue any moral authority figures I had ever encountered, because they would have obviously failed to impart to me even a modicum of judgment. Sad, truly sad.

    As I told Cory, you Leftists find reality to be a "red herring" because it is irrelevant to your fantasy world of sexual license and avoidance of responsibility.

  10. Bob Ellis 2011.07.02

    Cory, "Judge" Schreier delegitimized herself with her morally, scientifically and intellectually bankrupt ruling. There is nothing more I can do to delegitimize what she did to herself. All I can do is point it out and rightly condemn it for what it is, which is what God calls us to do.

    The fact that you feel no outrage over the slaughter of innocent human beings speaks very poorly for you, especially since I know that you cannot claim ignorance. You have been exposed to the truth in spades multiple times...and you have chosen to reject it.

    I truly hope you stop to examine the state of your soul before you face the Creator you don't believe in but who will rest assured judge (with far more discernment than "Judge" Schreier) you for the things you championed in this world. I've met my responsibilities (Ezekiel 3:18-21).

  11. Bill Fleming 2011.07.02

    Cory, I think its noble and egalitarian of you to let Ellis exercise his 1st Amendment rights here on your blog.

    But you know, there are some who obviously tale moral offense to some of the things he says.

    So here's my suggestion.

    You continue to allow Bob to post here, but before he can, he must first show proof that he has seen a mental therapist sometime within 72 hours of writing his post, and that he has shared and discussed the content of that post with the therapist. The therapist must be either BF Skinner behaviorist based or Freudian... none of that new age-y Jungian stuff.

    And he must submit to a MRI brain scan, which you will duly publish along with his post.

    I think it's only fair to him, Cory. He should be afforded every opportunity to change his mind, or at a minimum, to prove to his fellow commenters and his would be publisher (you) that he has one.

    What do you think, Cory?

    Too lenient?

    [CAH: Excellent suggestion, Bill! But I'm still waiting for Russ Olson to get back to me on my proposal to require all voters to spend 72 hours reading the Madville Times before voting Republican.]

  12. shane gerlach 2011.07.02

    I ask you again Bob much have you profited in your exploitation of the word of God?

    ~~~At least we are not commercializing God’s word like so many others. Instead, we speak with sincerity in the Messiah’s name, like people who are sent from God and are accountable to God.
    2 Corinthians 2:17 ~~~

    How often have you Commercialized the word of God Mr. Ellis. Please don't insult any of our intelligence by saying you haven't either.

    ~~~They say unto him, Master, this woman was taken in adultery, in the very act. 5Now Moses in the law commanded us, that such should be stoned: but what sayest thou? 6This they said, tempting him, that they might have to accuse him. But Jesus stooped down, and with his finger wrote on the ground, as though he heard them not. 7So when they continued asking him, he lifted up himself, and said unto them, He that is without sin among you, let him first cast a stone at her. 8And again he stooped down, and wrote on the ground. 9And they which heard it, being convicted by their own conscience, went out one by one, beginning at the eldest, even unto the last: and Jesus was left alone, and the woman standing in the midst. John 8~~~

    What will Jesus write in the sand about you Mr. Ellis? You sir are not the moral conscience of the world. Live your life as Jesus taught. You blatantly USE the word of God to further your own personal wealth and agenda. You are no better than the money changers in the temple. I pity your righteousness for it is only self serving.

    Listen to what GOD is telling you Mr. Ellis...not your financial backers.

  13. caheidelberger Post author | 2011.07.02

    So Bob, are you advocating impeachment of a federal judge? On what legal grounds? Will Congresswoman Noem take up this cause? Or does she delegitimize herself the moment she casts a single vote that conflicts with your political sensibilities?

    Really, Bob, trying to brush off everyone who doesn't do and say what you want, including legitimate constitutional officials, as "illegitimate," "intellectually bankrupt," "morally deficient," etc. continues to evade the basic legal question of the proper authority of government under the Constitution and established precedent, which is all that matters in deciding this case. I suspect you recognize like everyone else that HB 1217 is a lost cause in the courts, a poorly written law, and that the only purpose it serves is to invite more shouting.

    The arguments before the court and the judge's decision have nothing to do with Ezekiel, murder, capital punishment, sexual license, or moral responsibility. This case will be decided on the extent to which HB 1217 violates the First and Fourteenth Amendment rights of women.

    And that's why this law is on hold and will be overturned.

    (By the way, the state has created conditions that make it difficult women to obtain abortions more than once a week in South Dakota, just as Roger Hunt and the "Task Force" intended.)

  14. Sylvia Brandt 2011.07.02

    The woman's body, really? What about the baby's body? It is not the woman's body that is being slashed to death and dismembered with no anesthetic--and yes it has been proven babies in the womb feel pain. It is not the woman body that endures the horror of partial birth abortion which is the crushing of the skull and suctioning out the brains of a partially delivered LIVE baby. Too graphic? It is reality. They say that if the womb were transparent, there would be no abortions.

  15. Chris S. 2011.07.02

    Sylvia, it's a good thing you were put in charge of what happens in everybody else's uterus. Are you in charge of everybody's male reproductive parts, too? I need to know who to ask whenever I have a reproductive decision to make.

  16. caheidelberger Post author | 2011.07.02

    Sorry, Sylvia. Not a baby. Not a viable human being. And not an entity that can demand a woman submit her body to its service. The Constitution, the 14th Amendment, and equal citizenship for women takes priority over the incorrect assignment of "rights" to a non-viable fetus.

  17. john 2011.07.02

    Here we argue about Constitutonal rights and words written 2000 years ago. But right here in SD people are starving. People are living under bridges and in their cars. So Bob what did you do today to make the world a better place or relieve a little suffering? You picked a fight and flamed this little corner of the net. Something to be proud of- not. But in your aimless ways you can hope for the grace of god to save your soul rather than good works. Hope that works out for you .

  18. Sara B. 2011.07.03

    I've been reading this blog for a while, but today I just have to comment. I personally would never have an abortion, but knowing the choice is there is the real important thing(there are religions out there that believe any sort of medicine is wrong too, what if they were in power in the government? Would they take away our choice to see a doctor as well? jsyk, those religious segments are the ones who let their young children die from flu/small infections/other diseases solved by modern medicine) However, having the government step in and say to women across the state that you have to have that baby, but at the same time they (and society in general) will shun you for keeping it is just as hateful as acually having an abotion IMO. If they keep trying to ban abortion, they should at least properly fund medicade, plus other programs for low income families! Every time you turn around, either the local or federal government is cutting funding to the less fortunate. Those people spouting Christian beliefs and bible verses should eat their words and go help those single mothers; including quitting complaining about paying taxes. Those babies that they fight so hard to save by changing the laws are forgotten. Do you even know what happens to those babies that are kept but not wanted? Parents (if they are lucky to have both parents) work to pay off hospital bills, morgatges or rent (more family members=more rooms needed), food and and other supplies... Everyone gets burnt out, and in the end the children still suffer! It's sad that everyone focuses on just the abortion issue, but the aftermath gets forgotten when any "social programs" actually need funding.

    Sorry just a little passionate about the subject...

  19. Bill Fleming 2011.07.03

    People like Sara are the only ones any of us should be listening to. One paragraph from her trumps a hundred from Hickey and a thousand from Ellis. Thank you Sara.

  20. Sara B. 2011.07.04

    No prob Bill. I've seen a lot, read a lot, and listen a lot... Everything is really clear if you pay attention to the big picture, but everyone gets upset by the tiny thing right in front of them. Its like focusing on a dead bug on the windshield when the semi heading for you is what should be addressed first. It's politicians that want our votes and money that keep everyone focused on those specks while they keep sending semi-trucks in our direction. Keep your eyes peeled folks!

  21. Douglas Wiken 2011.07.04

    When words mean nothing: "to grant an innocent child" as when referring to dependent cells.

    As a matter of importance, dependent cells that have yet to toss a check into a collection plate or vote for dreadful religious intrusions into government that violate at least the spirit of the US Constitution and one of the prime motivators for that Constitution as indicated by a previous poster.

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