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