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South Dakota's abortion law faces lawsuit

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May 31, 2011

South Dakota

by Eileen McGuire-Mahony

Pierre, SOUTH DAKOTA: South Dakota's new three-day waiting period for women seeking abortions, the longest anywhere in the U.S., is being challenged in court by Planned Parenthood.[1]

Filed in federal court last Friday, PPMNS v. Daugaard seeks an injunction to prevent the law, HB 1217, from taking effect until the law's Constitutionality is established. The group maintains that the law violates Roe v. Wade, an argument that, if upheld, means the state's law would be scrapped in favor of the federal decision. If the injunction is not granted, the law takes effect on July 1, 2011.[2]

Backers of South Dakota's tougher abortion restrictions fully expected the lawsuit, but still had harsh words for abortion-rights activists. One lawmaker accused Planned Parenthood of being motivated by the revenue they stand to lose if abortions become more difficult to obtain. As of March 10, 2011, Planned Parenthood had preemptively announced they would sue if the bill was signed. At the time, Governor Daugaard would only say he was “inclined” to sign; he had until the 24th of March and ultimately approved it as part of a batch of laws on March 22, 2011.[3]

In a carefully worded statement accompanying his signing, Dennis Daugaard remarked, “I think everyone agrees with the goal of reducing abortion by encouraging consideration of other alternatives...I hope that women who are considering an abortion will use this three-day period to make good choices”. The immediate response was pointed, with a NARAL executive flatly announcing, “The barbarians have always been at the gates, but now the gates are open”.[4] Two months later, the lawsuit arrived.

In a prepared statement, Planned Parenthood, Minnesota, North Dakota and South Dakota (PPMNS) characterized the law as a potentially risky intrusion into womens' medical decisions. The lawsuit also alleged violations of privacy and of free speech rights. That complaint stems from the second major provision of HB 1217, that women seeking abortions provide written proof they have received counseling from a state-approved crisis pregnancy center. The lawsuit, filed on behalf of PPMNS by the Planned Parenthood Federation of America (PPFA) and the ACLU, describes that as compelled speech – a First Amendment violation.

An ACLU senior attorney expanded on the brief, saying, 'It is demeaning for the government to force a woman to visit a non-medical facility with a political agenda when she is making one of the most personal medical decisions of her life”[5] ACLU and PPFA personnel have also pointed to the fact that South Dakota voters twice defeated ballot items to ban or severely restrict abortion in the state, in 2006 and 2008, inferring that the new law contradicts the expressed will of voters.

The law's chief sponsor, Representative Roger Hunt, responded to charges that HB 1217's backers are trying to pressure women by insisting that the coercion is more likely to come from those favoring legalized abortion. Hunt said his law is designed to give women time to consider their decision and provide them with information. The state has 20 days after the lawsuit is filed to respond.

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