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.
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: