Stepping into the abortion ban debate

With the election almost upon us and the dust up over campaign ads continuing, it’s time to stick my nose into yet another ballot issue.

Supporters of the abortion law referred for a public vote (Referred Law 6) are being called to task because recent television ads said the ban contains an exception for the health of the mother. Additionally, when pressed on the lack of such an exception, they say the need for it is extremely rare and the law has no impact on how they would treat a pregnant woman. Let’s look at those assertions.

First, it could not be more plain: THERE IS NO EXCEPTION FOR THE HEALTH OF THE MOTHER. The statute expressly says the only exception is for treatment “designed or intended to prevent the death of a pregnant mother.” In fact, the Legislature specifically rejected efforts to include an exception specifically covering the health of the pregnant woman.

During the House debate, an amendment was proposed to create an exception for procedures designed or intended to prevent “serious risk of substantial and irreversible impairment of a major bodily function” of a pregnant mother. It lost by a vote of 41-27. During the Senate floor debate, an amendment was proposed creating an exception for “a medical procedure resulting in the termination of a pregnancy that would constitute an undue and serious risk to the health of the pregnant woman.” It lost by a 22-13 vote. (FULL DISCLOSURE: One of my law partners sponsored the amendment. I was unaware of and played no role in his decision to offer it. He is unaware of this post — unless or until he reads it.)

Now let’s move to why this bothers people like me. Some of this comes from a post some seven months ago in which I talked about the gray areas of life that tend to be overlooked in the emotion of the abortion debate.

As it stands now, in addition to the only exception being to prevent the death of a pregnant mother, the physician is required to make reasonable efforts “to preserve both the life of the mother and the life of her unborn child.” The statute says medical treatment provided to the mother “which results in the accidental or unintentional injury or death to the unborn child is not a violation of this statute.” (Emphasis added.)

The standard hypothetical is a pregnant woman diagnosed with cancer. Here’s the problem under the law.

Assume the woman is two months pregnant when she is diagnosed. There is a 90 percent survival rate if she immediately begins a course of radiation or chemotherapy (the numbers are solely for illustrative purposes, not actual medical data or studies). The survival rate drops to 25 percent if she carries the fetus to term. There is a 90-100 percent chance the treatment will cause irreversible and potentially fatal damage to the fetus regardless of when it is provided. Because we know that may occur, any such treatment would not result in “accidental or unintentional” injury or death to the fetus. Does the life of the mother exception allow mom a choice here? Or does the fact she still has a 25 percent chance if she carries the baby to term mean that only her “health” is endangered, the exception the Legislature specifically rejected? Where is the dividing line between acting to protect the woman’s health and acting to prevent her death?

In an article today, the law’s prime sponsor supposedly said the standard is “imminent peril.” Does such peril exist when the chances of survival drop to 40 percent, 25 percent or 10 percent? Does “imminent” mean health care providers must stand by until the woman’s heart rate or respiration is such that her death is a certainty if the only treatment might harm the fertilized egg within her?

Think that is an exaggeration? Then consider the far more common situation of an ectopic pregnancy, where a fertilized egg implants somewhere other than the uterus (e.g., the fallopian tubes). Because it is impossible for an ectopic pregnancy to go to term, the only treatment is terminating the pregnancy. Since the law defines a fertilized egg as an “unborn human being” does the sole exception to the statute forbid surgical or nonsurgical medical treatment that would terminate the pregnancy if mom’s life is not at risk? Again, this would not be accidental or unintentional harm to the fertilized egg. Must a doctor wait until mom is on death’s doorstep before embarking on treatment? At what point does death move from a possibility to a probability to an “imminent peril”?

Or consider the aspect of mom’s mental health. Prenatal tests reveal the fetus has anencephaly, a condition in one out of 1,000 live births. A fetus with this condition never gains consciousness and, if not stillborn, usually dies within a few hours or days after birth. The law apparently would require mom to carry the fetus to term because there is, by definition, an unborn human being and the condition does not pose a risk of death to mom. I know a woman who faced such a situation. She and her husband decided to carry the pregnancy to term. The baby — their first — was stillborn. How could you criticize whatever decision they made? But the key is my friend and her husband were allowed to make the decision that was right for them and their emotions and beliefs. The state did not mandate their choice in a no-win situation.

That is really the bottom line of my opposition to the law. The government dictates health care decisions that should be left to the informed consideration and judgment of mom and dad and the expertise of the health care provider. So do not accept the argument that there are exceptions for the health of the mother or there is no need for one. In fact, I think voters should also hold responsible those who specifically rejected efforts to create an exception for the health of the mother. Here is a list of the legislators who voted against the amendments, with the names of those seeking re-election underlined. And to show this wasn’t a party line vote, I’ve italicized the names of the Democrats for any who might think it’s safe to cast a legislative ballot based solely on party affiliation.

HOUSE: Brunner; Buckingham; Davis; Deadrick; Dykstra; Faehn; Frost; Garnos; Gassman; Glenski; Haverly; Heineman; Howie; Hunhoff; Hunt; Jerke; Klaudt; Koistinen; Kraus; Krebs; Lange; McCoy; Miles; Nelson; Novstrup; Olson (Ryan); Pederson (Gordon); Peters; Putnam; Rausch; Rave; Rhoden; Rounds; Schafer; Sebert; Tornow; Van Etten; Weems; Wick; Willadsen; Speaker Michels.

SENATE: Abdallah; Apa; Bartling; Bogue; Broderick; Duenwald; Earley; Gant; Gray; Greenfield; Hansen (Tom); Kelly; Kloucek; Koetzle; Koskan; Lintz; McNenny; Napoli; Peterson (Jim); Schoenbeck; Smidt; Sutton (Dan).

UPDATE: A group of South Dakota legislators today issued a letter outlining in detail that the representations made in the “Yes on 6” ads are contrary to the legislative history.

The preservation of life seems to be rather a slogan than a genuine goal of the anti-abortion forces; what they want is control. Control over behavior: power over women.

Ursula K. Le Guin, “The Princess,” Dancing at the Edge of the World

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8 comments to Stepping into the abortion ban debate

  • thanks, Tim. this is an excellent piece, very well thought-out (as usual). it clearly demonstrates the back-handed way these pro-life non-thinkers are mishandling the truth in order to attempt to influence this state, this country, and no doubt eventually the world to their oppressive way of life.

    thank you for bringing your insight and acumen to the debate.

  • Anonymous

    Philosophically the vast majority of South Dakotans oppose abortion and believe that about 98% of abortions currently performed should be illegal. I suspect the core opponents to Referred Law 6 want abortion to remain legal in all cases. But, as that argument doesn’t win in South Dakota, they take the debate away from South Dakotan’s philosophy on abortion and suggest a new standard – the perfect law.

    Referred Law 6 isn’t perfect it’s opponents say, so we must reject it. We oppose abortion, they suggest, but this is too much.

    This argument stinks on several levels. Should Referred Law 6 pass, it could be amended in any of the many years that will pass before it becomes effective due to the lawsuits that will inevitably be filed to challenge it. If one actually opposed abortion but had problems with 1% or 2% of the abortions that would be banned by 6, they would have plenty of opportunities to amend the law.

    If someone actually opposed abortion for the killing it is, they might reasonably accept an opportunity to save the 800+ lives lost each year to abortionist’s knives and chemicals as the greater good than the lives that would be impacted, not killed, but significantly impacted by the inability to kill the child of a rapist or the inability to kill a child whose existance threatened their health.

    Had we applied the no on 6 group’s standard to the US constitution or to most laws on their initial passage, we’d have no constitution, we’d have no laws.

    Some think the perfect abortion law would ban emergency contraception and that Referred Law 6 doesn’t go far enough. Some think abortion should be permitted in cases of rape or incest or grave threats to the health of the mother and that Referred Law 6 goes too far.

    Referred Law 6 is about abortion. It’s about whether we believe it is right or wrong to kill an unborn child. If you think it’s wrong to kill an unborn child, you should vote yes on 6. If you think it’s right to kill an unborn child, you should vote no on 6.

  • Anonymous

    I should have put my name on the bottom of my 10:06 comment.

    I polished it a bit and posted it here:

    Tim, it would be interesting to see you step into the abortion ban debate. That is, Should abortion be banned in South Dakota?

    Unfortunately we don’t seem to be debating an abortion ban in South Dakota but rather pursuing a philsophy of “Hard cases make good law.”

    Leaving the question of exceptions, if any, to a follow-up debate (in legislative sessions to come). I’d like to see South Dakotans have an acutal abortion ban debate: “Resolved, that abortion leads to the killing of human persons and so should be outlawed save for rare and specific cases to be determined by the people through their legislature.”

    Charley House

  • Anonymous

    I dealt with the legal aspects of a similar situation here in Canada some time ago. The opposition’s response to the entopic pregnancy question ran as follows: “In this situation it is incumbent upon the medical practitioner to adopt the practice of transplanting the fertilized egg from the fallopian tube to the womb with no less rigor than you would struggle to save a baby left in a ditch.”
    Just giving you a heads up as I figure someone very soon will use this rebuttal in your discussions. Forewarned is forearmed.

  • Something for Pro-choicers and Pro-lifers to concider…..

    World estimations of the number of terminations carried out each year is somewhere between 20 and 88 million.

    3,500 per day / 1.3 million per year in America alone.

    50% of that 1.3 million claimed failed birth control was to blame.

    A further 48% had failed to use any birth control at all.

    And 2% had medical reasons.

    That means a stagering 98% may have been avoided had an effective birth control been used.

    I am a 98% pro-lifer, 2% Pro-choicer, who has no religious convictions at all . I didn’t need the fear of god or anything else to come to my decision, just a good sense of what is right and wrong.
    You see we were all once a fetus. Is it beyond the realm of possibilities that when your mother first learned she was carrying you, she may have considered her options? What if she had decided to terminate? Would that have been OK?
    You would not exist, if you have children they would not exist, and your (husband or wife) would be married to someone else. You would have been deprived of all your experiences and memories. In this day and age with terminations being so readily available and so many being carried out, if you make it to full term
    you can consider yourself lucky. Lucky you had a mother that made the choice of life for you. Don’t you think they all deserve the same basic human right, LIFE?

    At the point of conception is when life began for you. This was the start of your existence. Your own personal big bang. Three weeks after conception heart started to beat. First brain waves recorded at six weeks after conception. Seen sucking thumb at seven weeks after conception.

    I am convinced that in the not too distant future, people will look back at many of the practices of today with disbelief and horror.

  • Tim

    Regarding Charley’s suggestion that I am avoiding the debate about the core question of whether abortion should be banned in South Dakota, I would think that saying there needs to be an exception to abortion laws for the health of the mother answers that. As for the resolution he proposes, if you read the “findings” of the bill, that is a significant part of the current debate over the abortion law. We are now determining if “the people” agree with the actions taken by their legislature.

  • I really believe that the abortion debate is far too narrow. We have pro-choicers, which are often seen as condoning the deaths of “babies”. We have “pro-lifers” which are seen as religious whack jobs that want to impose their religion and morality on everybody. We need to find some middle ground in this debate.

    I call myself pro-choice. But I believe in the choice to carry a baby to term even more than I believe in the right to have an abortion. It is so difficult for women who are living in poverty with no access to health care to carry a baby to term. If there was better access to pre-natal care, sex education and help with the day to day dificulties of raising a child there would be far fewr abortions. We forget that if it were not so hard that more women would choose to carry babies to term and this abortion ban does nothing to address the cause of the high abortion rates.

    The high rate of infant mortality in the United States, means that an unacceptable number of wanted babies are dying. Where are the howls of outrage from pro-lifers about all these dying babies?

    If we want to prevent abortions I do not think that banning the practice is the way to do it. We do not want to go back to a time when back alley abortions were common and women showed up in emergency rooms dying from the effects of botched abortions. Let’s attack the root cause of the problem instead. This is what will ultimately help mothers and babies.

    I think if pro-choicers adopted this line of thinking there would be a lot more pro-choicers.

  • Tanya,

    see ausblog’s comments?