Press "Enter" to skip to content

South Dakota Anti-Abortion Law Suffers Bad Language, Bad Lawyers

If anti-abortion activists were hoping to use South Dakota's coercive counseling law to overturn Roe v. Wade in court, they should have done two things: (a) craft a better law, and (b) hire better lawyers.

Judge Karen Schreier's injunction blocking most of HB 1217 mentions Roe v. Wade once, on page 53, in discussing the absurdity of the "risk factors requirement." She hardly needs to. Her injunction makes clear that anti-abortion activists hung themselves by slapping together a sloppy law that left the state's defense team making arguments so shoddy that rebuttal doesn't require accessing Roe.

For example, Planned Parenthood argues that HB 1217 violates the First Amendment by forcing women to say things they don't want to say. The government can't compel speech except to serve some essential government function, like obtaining evidence in a criminal trial.

The defense (Governor Daugaard, AG Jackley, Health Secretary Hollingsworth, and Board of Medical and Osteopathic Examiners President Ferrell) first tries to argue that women aren't forced to say anything. The law says a woman seeking an abortion is required to submit to an interview with pregnancy help center staff. An interview, says Judge Schreier, by definition includes questions and answers (p. 9). At a minimum, the language of the law forces a woman to surrender to the pregnancy help center her name, the facts that she is pregnant and seeking to abort, and the name of her doctor.

The defense then argues that this compelled speech serves the essential government functions of protecting women against coerced abortions and informing women of abortion risks and alternatives. The judge notes that the defense can't logically maintain that this law reveals evidence of coercion but that it doesn't require women to reveal information (p. 13).

That contradiction notwithstanding, the Legislature missed the boat on serving a government function by forcing the women to speak to a private clinic (p. 9). (Maybe the Legislature should have required Governor Daugaard to conduct the PHC interviews.) The defense and Legislature also failed to recognize that the state's interests are already served by existing legal requirements on doctors and the medical profession's own common-law duty to obtain "voluntary and uncoerced and informed" consent. And just to kick the argument while it's down, Judge Schreier adds that forcing women to submit to a lecture from a group clearly opposed to her intentions likely will "cause the woman to reject the argument outright" (p. 15).

Judge Schreier evidently heard a number of other howlers from the defense. Our leaders maintained, for instance, that privacy concerns under HB 1217 wouldn't stop women from having abortions. Women are willing to tell abortion clinic staff that they want an abortion, so clearly, reasons the defense, they'll be willing to tell Leslee Unruh or other pregnancy help center staff the same thing (p. 22). Judge Schreier rejects this argument, which we can only hope is a desperate "don't just sit there, Marty: argue something!" ploy and not a true reflection of an utter disregard by our governor and attorney general for the value of privacy.

Faced with a sloppy definition of coercion in HB 1217 that speaks of actions against a woman's desire, the defense asks Judge Schreier to read desire as will. Judge Schreier declines to play judicial activist and insists that the state must dance with the law law that brought them to court (pp. 37–38).

On the risk factor requirement, which as written forces doctors to tell patients about abortion risks that might have been mentioned in one journal article but which have been disproven by numerous subsequent studies (like the bogus link anti-abortion activists claim between abortion and breast cancer; see pp. 46–47), the defense says "the physician is free to explain to the patient that this type of forced disclosure is untruthful or misleading" (p. 47). The defense here admits that the law forces doctors to give patients misleading information, at which point we're nowhere near a discussion of Roe v. Wade; we're violating the Hippocratic oath.

I suppose I should refrain from criticizing the governor and the attorney general too much for their awful defense arguments. The Legislature handed them (ah, but Dennis, you did sign!) an indefensible law. It's an example of the anti-abortion crusaders' willful blindness to basic Constitutional principles that drown out an arguments they might wish they could make against Roe v. Wade. HB 1217 sponsor Roger Hunt and his ilk aren't even trying to make good law. They're just throwing spaghetti against the wall and hoping something sticks.

And their only hope of "sticking" is finding a radical judicial activist who will rewrite their ill-formed laws from the bench... or a judge who is drunk.


  1. Bill Fleming 2011.07.05

    Very good, Cory. Very good indeed.

  2. Curtis Loesch 2011.07.05

    Don't stop criticizing Hunt, Daugaard and other do-gooders who can't keep their long pointy noses out of citizen's private matters.

  3. Steve Sibson 2011.07.05

    So when does the unborn child get their say and granted Constitutional protection?

  4. larry kurtz 2011.07.05

    Beginning at the third trimester, Steve.

  5. caheidelberger Post author | 2011.07.05

    Steve, not soon enough to make HB 1217 Constitutional. The woman's bodily autonomy takes precedence. We cannot force her to submit her body to the service of another being. So the Constitutional protection you seek for the fetus kicks in only when another human being can willingly step in to support that being.

  6. Roger Elgersma 2011.07.05

    My prochoice friends in the past told me that they also wanted to reduce abortions. I no longer believe that. They want to block women going through that decision to not hear all the facts. They just want the disfunctional,"in their definition" to kill their babies so we will not have them on the welfare rolls.
    As far as another person being there to support them, I do not have rights to my own kids in divorce when I was the best parent. You would not believe how many women tried real hard to make me think that that was normal and that I should accept losing my kids when I was the best parent. They want to rule family and leave the man out at their whim. They want to kill your kid and steal mine with out the man having any opinion at all. That is what a woman calls equal rights.

  7. Douglas Wiken 2011.07.05

    "Don’t stop criticizing Hunt, Daugaard and other do-gooders who can’t keep their long pointy noses out of citizen’s private matters"..or citizen's private parts.

  8. Curtis Loesch 2011.07.05

    Doug, I think we share a sense of the absurd. Absurd defined as, using the dictionary presently at hand, [dull, deaf, insensible] "so clearly untrue or unreasonable as to be laughable or ridiculous."

Comments are closed.