This and the following post were in today's weekly STOPP email
South Dakota outlaws abortion
South Dakota governor Mike Rounds signed into law this week a bill passed by the South Dakota legislature that outlaws all medical and surgical abortions in the state.
The new law makes it a crime for anyone to intentionally kill a baby in the womb.
There is a great deal of confusing information being spread about this new law. We will use this issue of WSR to try and explain what the law does and does not do.
First, the main text of the law reads:
No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being. No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being. Any violation of this section is a Class 5 felony.
Does the law contain an exception for “the life of the mother?” NO. Despite newspaper accounts which claim that such an exception is in the law, what it actually states is:
No licensed physician who performs a medical procedure designed or intended to prevent the death of a pregnant mother is guilty of violating section 2 of this Act. However, the physician shall make reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of her unborn child in a manner consistent with conventional medical practice.
Medical treatment provided to the mother by a licensed physician which results in the accidental or unintentional injury or death to the unborn child is not a violation of this statute.
Thus, the law says you cannot kill the baby to save the mother’s life. You must try to save both mother and child. If, in doing this, the baby is accidentally or unintentionally killed, this is not a crime. But, direct and intentional killing of the baby is not allowed.
Does the law say that contraception that prevents implantation is okay? NO. What it says is that this particular law does not cover that circumstance. Thus, that will have to be dealt with in another law. Specifically, the bill says:
Nothing in … this Act may be construed to prohibit the sale, use, prescription, or administration of a contraceptive measure, drug or chemical, if it is administered prior to the time when a pregnancy could be determined through conventional medical testing and if the contraceptive measure is sold, used, prescribed, or administered in accordance with manufacturer instructions.
“Why,” you may ask, “does this need to be in the law?” Well, remember that we are dealing here with a law. It, therefore, needs to be very legalistic in its language. If we go back to the first statement above, you will read that the law requires an “intent” to end the life of a preborn child. Since the contraceptive products work some of the time by killing the child but other times by preventing ovulation or fertilization, it would be difficult to argue intent. In addition, if the law is in anyway vague, Planned Parenthood would argue that it should be declared unconstitutional because it is vague. Thus, the authors appear to have taken great pains to spell out exactly what the law covers and what it does not cover.
This is just good writing of a law so it cannot get sidetracked from its main purpose.
Of course, if “conventional medical testing” advances to the point that we can determine the existence of the human being at fertilization, this law would prevent the use of these products after fertilization.
In addition, the law defines fertilization, human being and pregnancy as follows:
"Fertilization," that point in time when a male human sperm penetrates the zona pellucida of a female human ovum
"Unborn human being," an individual living member of the species, homo sapiens, throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and childbirth;
“Pregnant," the human female reproductive condition, of having a living unborn human being within her body throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and child birth;