Last updated on 2015.05.28
...and free Topicality brief for policy ashebaters!
A Fourth of July spent reading Judge Karen Schreier's full ruling reveals I overstated the scope of her injunction. Thursday's ruling does not block House Bill 1217 in its entirety. Judge Schreier identified three sections of this really atrocious de facto abortion ban that do not violate the Constitution and allowed them to take effect Friday as planned by South Dakota's patriarchal Taliban.
The magic sections, which Planned Parenthood does not challenge in its lawsuit:
- Section 5, allowing the Department of Health to maintain a registry of "pregnancy help centers" eager to coerce women out of making their own reproductive choices
- Section 7.1, defining pregnancy health centers
- Section 9.5, legalese declaring that no woman (or decision-maker therefor) can waive the requirements imposed on her doctor by South Dakota's already oppressive abortion restrictions.
These sections constitute 18.7% of the text of HB 1217. The rest, says Judge Schreier, is unconstitutional.
Policy Debate Bonus: Judge Schreier Briefs Topicality! 18.7% also just happens to be close to the number Judge Schreier cites in a remarkable discourse (see pp. 22–26) on the definition of "large fraction" that is sure to wind up in Topicality response files of the high school policy debaters in my audience. I often judge high school policy debates in which the decision revolves around whether the affirmative plan creates a "significant" or "substantial" effect. In addressing whether HB 1217 constitutes an "undue burden" under the controlling precedent of Planned Parenthood v. Casey (1992), the plaintiffs must show that the proposed abortion restrictions affect a "large fraction" of relevant cases.
In this case, the defense (Governor Daugaard et al.) argue that "large fraction" means "at least half of the group in question." That's standard Negative strategy, trying to raise the bar for significance. Judge Schreier rejects that definition, saying that if the judges ruling in Casey had meant "majority," they would have said "majority." Citing precedent, Judge Schreier equates "large fraction" with "significant number" (policy debaters automatically salivate). "Large fraction," says the judge, "should not be construed as some numerical threshold that must be established." (Affirmative! Highlight, underline, draw little elephants, and glue that line to the front of your Topicality response file!)
While shunning a strict numerical definition, Judge Schreier cites another South Dakota abortion case, Planned Parenthood v. Miller (1995), for an example of a number that has qualified in precedent as a "large fraction." In that case, the State of South Dakota defended a parental notification requirement by saying that if one parent wouldn't allow a minor daughter to obtain an abortion, the girl had the option of getting the other parent's permission. But the court noted that "many" minors have only one parent. The actual stats at the time said 18% of kids had just one parent. Thus, without establishing a lower bound, Judge Schreier says 18% is an example of a fraction that, well short of majority, still counts as "large."
Of course, Judge Schreier didn't need to go to all the work of rejecting the defense's high-ball "large fraction" argument: she maintains that the pregnancy help center requirements pose an undue burden in degradation, confrontation, and delay in "nearly every instance."