South Dakota maintains some of the most comprehensive and protective abortion-related laws in the nation. Its informed consent requirements, in particular, have received significant national attention. Notably, South Dakota is one of only a small number of states to prohibit destructive embryo research including cloning and fetal experimentation.
- South Dakota maintains a law that would “on the date that the states are given the exclusive authority to regulate abortion” ban abortion throughout pregnancy except if necessary to preserve a woman’s life. It specifically applies both to surgical and chemical abortions and applies at all stages of pregnancy.
- South Dakota prohibits partial-birth abortion.
- South Dakota provides that no abortion may be performed after the 24th week of pregnancy unless the procedure is necessary to preserve the woman’s life or health.
- A physician may not perform an abortion on a woman until at least 24 hours after she has been informed of the probable gestational age of her unborn child, the medical risks of abortion, the medical risks of carrying the pregnancy to term, and the name of the physician who will perform the abortion. She must also be informed about available medical assistance benefits, the father’s legal responsibilities, and her right to review additional information prepared by state health department officials.
- South Dakota requires that women be informed that “the abortion will terminate the life of a whole, separate, unique, living human being;” that the woman “has an existing relationship with the unborn human being and that the relationship enjoys protection under the United States Constitution and under the laws of South Dakota;” and that “by having an abortion her existing relationship and her existing constitutional rights with regards to that relationship will be terminated.” In 2012, the Eighth Circuit upheld en banc South Dakota’s requirement that a woman be informed of the risk of suicide and suicide ideation following abortion.
- In 2012, the Eighth Circuit upheld en banc South Dakota’s requirement that a woman be informed of the risk of suicide and suicide ideation following abortion.
- A physician must perform an assessment of a woman’s medical and personal circumstances prior to an abortion. Moreover, a woman exhibiting certain risk factors must receive counseling about mental health risks associated with abortion.
- A 2011 law requiring that a woman consult with a “pregnancy help center” before undergoing an abortion is in enjoined. In 2012, the law was amended to require pregnancy help centers (or pregnancy resource centers) to have licensed medical and mental health professionals on staff.
- South Dakota requires that a woman be offered an ultrasound and the opportunity to view the image prior to undergoing an abortion. The law also requires that abortion providers report the number of women who undergo abortions after choosing to view the ultrasound.
- South Dakota law provides that it is a physician’s common law duty to determine that the woman’s consent is not coerced and that he or she must assess whether the woman is being coerced into seeking an abortion.
- A physician may not perform an abortion on an unemancipated minor under the age of 18 until at least 48 hours after providing written notice to one parent or after obtaining a court order. South Dakota also requires parental notification within 24 hours after the performance of an “emergency abortion” on a minor; however, an exception to the requirement is permitted if a minor indicates that she will seek a judicial bypass.
- South Dakota requires that all abortion clinics in the state meet minimum health and safety standards. Further, second-trimester abortions (beginning at 14 weeks and 6 days gestation) must “be performed in a hospital, or if one is not available, in a licensed physician’s medical clinic or office of practice subject to the requirements of §34-23A-6 [blood supply requirements].”
- Only a physician licensed by the state or a physician practicing medicine or osteopathy and employed by the state or the United States may perform an abortion. Further, the state medical board prohibits physician assistants and nurses from entering into practice agreements under which they may perform abortions.
- No surgical or medical abortion may be scheduled except by a licensed physician and only after the physician physically and personally meets with the pregnant woman, consults with her, and performs an assessment of her medical and personal circumstances.
- For each abortion performed, an abortion provider must complete a reporting form mandated and provided by the South Dakota Department of Health. The required information includes: (1) the method of abortion; (2) the approximate gestational age of the fetus; (3) the specific reason for the abortion; (4) the entity, if any, that paid for the abortion; (5) a description of any complications from the abortion; (6) the method used to dispose of fetal tissue; (7) the specialty area of the attending physician; (8) whether the attending physician has been subject to license revocation, suspension, or other professional sanction; (9) the number of previous abortions the woman has had; (10) the number of previous live births of the woman; (11) whether the woman received the RH test and tested positive for the RH-negative factor; and (12) the marital and educational status and race of the woman. The provision applies to both surgical and nonsurgical abortions, but does not require that any information be reported to the Centers for Disease Control (CDC).
- South Dakota prohibits public funding for abortion unless the procedure is necessary to preserve the woman’s life (in contravention of federal law).
- South Dakota prohibits health plans offered through the state’s health insurance Exchanges (required by 2014 under the federal healthcare law) from including abortion coverage.
- The state offers “Choose Life” license plates, the proceeds of which benefit pregnancy care centers and/or other organizations providing abortion alternatives.
Legal Recognition and Protection of Unborn and Newly Born:
- Under South Dakota law, the killing of an unborn child at any stage of gestation is defined as a form of homicide.
- South Dakota defines a nonfatal assault on an unborn child as a crime.
- The state allows a wrongful death (civil) action when an unborn child at any stage of development is killed through a negligent or criminal act.
- The state has created a specific affirmative duty for physicians to provide medical care and treatment to an infant born alive at any stage of development.
- The state defines substance abuse during pregnancy as “child abuse” under civil child-welfare statutes.
- South Dakota maintains a measure allowing a woman who loses a child after 20-weeks gestation to obtain a “Certificate of Birth Resulting in a Stillbirth.”
- South Dakota bans human cloning for any purpose, destructive embryo research, and fetal experimentation.
- The state does not promote ethical forms of research.
- South Dakota maintains no meaningful regulation of assisted reproductive technologies.
End of Life Laws:
- Assisted suicide is a felony in South Dakota.
Healthcare Freedom of Conscience Laws:
Participation in Abortions:
- South Dakota law protects the rights of physicians, nurses, counselors, social workers, and other persons to refuse to perform, assist in, provide referrals for, or counsel on abortions.
- A healthcare provider’s conscientious objection to performing or assisting in an abortion may not be a basis for liability, dismissal, or other prejudicial actions by a hospital or medical facility with which the person is affiliated or employed.
- A counselor, social worker, or other person in a position to address “the abortion question . . . as part of [the] workday routine” who objects to providing abortion advice or assistance may not be held liable to any person or subject to retaliation by an institution with which the person is affiliated or employed.
- No hospital is required to admit a woman for the purpose of abortion. The refusal of a hospital to participate in abortions may not be a basis for liability.
- A pharmacist is not required to dispense medication if there is reason to believe the medication would be used to cause an abortion.
Participation in Research Harmful to Human Life:
- South Dakota currently provides no specific protection for the rights of healthcare providers who conscientiously object to participation in human cloning, destructive embryo research, or other forms of medical research, which violate a provider’s moral or religious belief.
What Happened in 2013:
- South Dakota enacted a measure amending its 72-hour reflection period to exclude Saturdays, Sundays, and federal and state holidays.
- The South Dakota House and Senate adopted a measure urging the United States Supreme Court to revisit Roe v. Wade and overturn the decision.
- The state considered a measure prohibiting wrongful birth and/or wrongful life lawsuits.
Recommendations for South Dakota
Women’s Protection Project Priorities:
- Women’s Health Defense Act (5-month abortion limitation)
- Abortion Patients’ Enhanced Safety Act
- Parental Consent for Abortion Act
- Parental Involvement Enhancement Act
- Child Protection Act
- Defunding the Abortion Industry and Advancing Women’s Health Act
- Coercive Abuse Against Mothers Prevention Act
- Prenatal Nondiscrimination Act
- Joint Resolution Commending Pregnancy Resource Centers
- Assisted Reproductive Technologies Disclosure and Risk Reduction Act
Healthcare Freedom of Conscience:
- Healthcare Freedom of Conscience Act