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(1/30/2007)
New South Dakota Abortion Ban Submitted HB 1293 would allow well-defined exception for rape/incest
BY BOB ELLIS DAKOTA VOICE A new bill banning all abortions in South Dakota except to preserve the life and health of the mother, or in cases of rape or incest, was introduced to the legislature today. The new bill, HB 1293, is similar to the one passed by a bipartisan majority of the state legislature last year, HB 1215, but unlike that one which only allowed abortions to save the life of the mother, this one contains the exceptions which 75% of South Dakotans said they would vote for, according to poll results. Pro-abortion advocates opposed to HB 1215 organized a petition drive last spring and obtained enough signatures to take the law to a referendum in the November election. What followed was an unprecedented and historic campaign between abortion advocates and opponents, with the main point of contention centering around the lack of exceptions in the law for pregnancies caused by rape or incest. Though the law contained a provision which allowed the use of emergency contraceptives after a rape, this never gained much traction with the voters. Abortion advocates did draw a clear and deep line in the sand during the campaign that indicated the primary objection to the law was that lack of rape and incest exception. Several polls during the campaign indicated that the people of South Dakota would have overwhelmingly passed the law if it had contained those exceptions. In November, 44% of South Dakotans voted for HB 1215/Referred Law 6 without those exceptions. The fact that this bill has the sought-after exceptions would make its approval by the people of South Dakota a virtual certainty, were it to be referred to the voters like last year. The bill recognizes that the pregnant mother's relationship with her child is beneficial, even during pregnancy. It also recognizes that all abortions end the life of "an entire, unique, living human being, a human being separate from his or her mother, as a matter of scientific and biological fact, and terminate that pregnant mother's existing natural relationship with her child." The bill further contends that many abortions are not truly "informed and voluntary," often being coerced into it by the father or others, and that abortion providers compound the problem. The psychological and physical health risks are also cited in the legislation, specifically mentioning the greater risk for "psychological distress, depression, suicidal ideation, and suicide." The health exception in the new bill is tightly worded to prevent misuse and abuse, stating that the health exception is only to "devastating and irreversible injury to the mother’s health, which is likely to cause a very significant impairment of the functioning of a major bodily organ or system, and which is likely to cause very significant impairment of the quality of the mother’s life." The abortion may proceed only if a second doctor, not in practice with the abortionist, makes the same judgment in writing after a thorough review of all medical records and an examination of the mother. The rape exception is allowed only up to 17 weeks from the mother's last menstrual period. It also requires the mother to have reported the rape to law enforcement authorities within 50 days of the rape, and the doctor performing the abortion must obtain a copy of the police report. That report must contain the name and last known address of the rapist, if known, or a description of the perpetrator if his identity is not known. Before the abortion is performed, the doctor must obtain a blood sample from the mother and the unborn child so that they can be provided to law enforcement authorities for DNA testing. These samples must be turned over to law enforcement within 24 hours of the procedure. Essentially the same procedures are required for the incest exception, with the exception of the requirement that a police report be on file. However, the abortionist must contact law enforcement authorities and advise them of the offense before performing the abortion. Abortionists must also advise the mother of the location of Department of Social Services offices in her area, and advise her that DSS will provide counseling and other supportive services to her. This bill also contains the same provision that HB 1215 had last year for the use of emergency contraceptives "prior to the time when it could be determined that the woman is pregnant through conventional medical testing." The following is the text of the bill: FOR AN ACT ENTITLED, An Act to regulate the performance of certain abortions, to reinstate the prohibition against certain acts causing the termination of the life of an unborn human being, and to prescribe a penalty therefor. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: Section 1. The Legislature finds: (1) That a pregnant mother possesses certain inherent rights, that these are natural intrinsic rights which enjoy affirmative protection under the Constitution of the United States, and under the Constitution and laws of the State of South Dakota, and that among these rights are the fundamental right of the pregnant mother to her relationship with her child, her fundamental right to make decisions that advance the well-being and welfare of her child, and her interest in her own health; (2) That the pregnant mother's relationship with her child is inherently beneficial to the mother; that a mother's unique relationship with her child during pregnancy is one of the most intimate and important relationships, and one most worthy of legal protection; that the history and tradition of our nation has recognized this relationship as one that has intrinsic beauty and benefit to both the mother and the child; and that this relationship is recognized as one of the touchstones, and at the core, of all civilized society; (3) That all induced abortions, whether surgically or chemically induced, terminate the life of an entire, unique, living human being, a human being separate from his or her mother, as a matter of scientific and biological fact, and terminate that pregnant mother's existing natural relationship with her child; (4) That a physician performing an abortion terminates the life of one of the physician's patients to whom the physician owes a professional and legal duty, which duty is extinguished, under existing law, by the exercise of a written consent to an abortion by the pregnant mother of the unborn child; (5) That a large percentage of the decisions made by pregnant mothers to give up their rights and interests in their relationship with their children by submitting to an abortion, are not truly informed and voluntary; that there are inherently coercive aspects to the abortion procedure; and that often the uninformed and difficult nature of the decision is seriously compounded by the practices of abortion providers; (6) That an abortion is an unworkable method for a pregnant mother to give up, surrender, or waive her fundamental right to her relationship with her child; (7) That in the majority of cases there is no normal or traditional physician-patient relationship or counseling between a pregnant mother contemplating submitting to an abortion and the physician who performs the abortion; (8) That submitting to an abortion subjects the pregnant woman to significant health risks; that the abortion procedure is inherently dangerous to the psychological and physical health of the woman; that an abortion places most women at greater risk for psychological distress, depression, suicidal ideation and suicide than carrying her child to full term and giving birth; (9) That the State of South Dakota possesses a duty to protect, and it is a legitimate exercise of the State's power to protect, the natural intrinsic rights and interests of a pregnant mother in her relationship with her child; in her ability to protect the well- being of her child; and her own health; (10) That the State of South Dakota possesses a duty to protect, and it is a legitimate exercise of the State's power to protect, the life of each human being within its borders, including those human beings living in utero; (11) That it is neither practical nor possible for the State to simultaneously protect these fundamental rights and interests of pregnant mothers and the lives of their children, and, at the same time, provide legal authority or protection for the act of a physician who terminates the lives of these mothers' unborn children by an abortion; that protection of these rights of the mothers are in conflict with protection of the act of the physician which terminates these rights by terminating the life of the unborn child; (12) That the right and duty of the State to protect and preserve the life of the unborn child cannot co-exist with a law that authorizes the termination of that life by the physician; (13) That it is now clear that the State of South Dakota can either protect the mother's fundamental natural intrinsic rights, or protect the physician's act that terminates and adversely affects them, but that the State cannot effectively protect both; and that the State's duty is to protect the natural and intrinsic rights of the pregnant mother and the life of her unborn child, and must, therefore, prohibit physicians from terminating these rights and interests by the performance of abortions, to the fullest reasonable extent federal law shall permit, consistent with the provisions of this Act. Section 2. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows: Any person who knowingly performs any procedure upon a pregnant mother, or who uses any instrument upon a pregnant mother, or who administers any medicine or drug or substance or device to a pregnant mother, or who prescribes or procures or sells any medicine or drug or substance or device for use by a pregnant mother, with the intent of causing or abetting the termination of the life of an unborn human being, is guilty of a Class 4 felony. This section shall not apply if a licensed physician is performing a surgical or medical abortion for one of the following reasons: (1) The physician has made an appropriate and reasonable medical judgment, the bases of which shall be specifically identified and documented in the pregnant mother's medical records, that the abortion is necessary to save the life of the mother; (2) The physician has made an appropriate and reasonable medical judgment, the bases of which shall be specifically identified and documented in the pregnant mother's medical records, that the abortion is necessary in order to prevent a devastating and irreversible injury to the mother's health, which is likely to cause a very significant impairment of the functioning of a major bodily organ or system, and which is likely to cause a very significant impairment of the quality of the mother's life. However, the physician may only proceed with the abortion if a second physician, not associated in practice with the first, also makes the same judgment in writing after examining the pregnant mother and reviewing all appropriate medical records and tests; (3) The physician has determined that the pregnancy is the result of a rape, as that term is defined in § 22-22-1, in which cases, the following conditions apply: (a) The abortion cannot be performed later than seventeen weeks following the date of the mother's last menstrual period, as confirmed by a sonogram and other conventional methods; (b) Before performing the procedure the physician shall confirm by personally obtaining a copy of the record of the report from the entity to which the report was made that the pregnant mother had reported the rape within fifty days of the event to the appropriate law enforcement authorities, and, if the rape allegation is made pursuant to subdivision 22-22-1(5), shall confirm that the report contains the name and last known address of the alleged perpetrator, and, in all other instances, shall confirm that the report contains either the name and last known address of the alleged perpetrator or, if the identity of the perpetrator is unknown, contains a description of the alleged perpetrator to the best of the mother's ability; (c) Before performing the procedure the physician shall obtain the consent of the mother to have a blood sample drawn or other biological sample collected from both herself and from the remains of the child, so that these can be provided by the physician to the appropriate law enforcement authorities so that DNA testing may be performed; (d) The physician shall draw the blood samples or collect the other biological samples, and shall then secure and clearly label the samples, and shall take such steps as are appropriate and necessary to preserve the samples, until transfer to the law enforcement authorities; (e) The physician shall contact the law enforcement authorities by telephone, shall advise the law enforcement authorities that the physician has obtained samples pursuant to this section, and shall arrange with the law enforcement authorities to transfer custody of the samples to the authorities within twenty-four hours after the procedure is performed; (f) The physician shall document all the actions taken pursuant to this subdivision and shall maintain copies of all the documents and consents as part of the mother's permanent medical records; (4) The physician has determined that the pregnancy is the result of an incest, as that term is defined in § 22-22A-1, in which cases, the following conditions apply: (a) The abortion cannot be performed later than seventeen weeks following the date of the mother's last menstrual period, as confirmed by a sonogram and other conventional methods; (b) Before performing the procedure the physician shall obtain the consent of the mother to report the incest together with the name and last known address of the alleged perpetrator to the appropriate law enforcement authorities; (c) Before performing the procedure the physician shall contact the appropriate law enforcement authorities by telephone, shall advise the law enforcement authorities that the physician is making a report of incest, pursuant to this section, and shall provide the name and address of the pregnant mother together with the name and last known address of the alleged perpetrator, as provided by the mother; (d) Before performing the procedure the physician shall provide the mother with the location of the office of the Department of Social Services nearest to the mother's residence and nearest to the location of the facility where the procedure is to be performed, and shall inform the mother that the department will upon request provide counseling and other supportive services to the mother; (e) Before performing the procedure the physician shall obtain the consent of the mother to have a blood sample drawn or other biological sample collected from both herself and from the remains of the child, so that these can be provided by the physician to the appropriate law enforcement authorities so that DNA testing may be performed; (f) The physician shall draw the blood samples or collect the other biological samples, shall secure and clearly label the samples, and shall take such steps as are appropriate and necessary to preserve the samples, until transfer to the law enforcement authorities; (g) The physician shall contact the law enforcement authorities by telephone, shall advise the law enforcement authorities that the physician has obtained samples pursuant to this section, and shall arrange with the law enforcement authorities to transfer custody of the samples to the authorities within twenty-four hours after the procedure is performed; (h) The physician shall document all the actions taken pursuant to this subdivision and shall maintain copies of all the documents and consents as part of the mother's permanent medical records. Section 3. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows: -------------------------------------------------------------------------------- Nothing in section 2 of this Act prohibits the prescription or sale or use or administration of a contraceptive medicine or drug or substance or device, if prescribed or sold or used or administered prior to the time when it could be determined that the woman is pregnant through conventional medical testing, and if the contraceptive measure is prescribed or sold in accordance with manufacturer instructions. Nothing in section 2 of this Act prohibits any person from assisting a pregnant mother in obtaining an abortion in any other state where such a procedure is legal. Section 4. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows: Whenever a physician is performing an abortion permitted by the provisions of section 2 of this Act, 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. Section 5. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows: Medical treatment provided to the mother by a licensed physician which results in the accidental or unintentional injury or death of the unborn child is not a violation of this Act. Nothing in this Act subjects the pregnant mother upon whom any abortion is performed or attempted to any criminal conviction and penalty. Section 6. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows: Terms used in this Act mean: (1) "Abortion," the use of any procedure or instrument or medicine or drug or substance or other means to intentionally terminate the pregnancy of a woman known to be pregnant, with knowledge that the termination with reasonable likelihood will cause the death of the unborn child; (2) "Pregnant," the human female reproductive condition of having a living unborn child within the mother's body, throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and child birth; (3) "Unborn human being" and "unborn child," an individual living member of the species homo sapiens throughout the entire embryonic and fetal ages from fertilization to full gestation and childbirth. Section 7. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows: Chapters 187 and 188 of the 2005 Session Laws shall take effect pursuant to section 7 of chapter 187, as amended by section 1 of chapter 188, only in the event that the provisions of section 2 of this Act are declared unconstitutional or their enforcement is restrained. Section 8. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows: Nothing in the provisions of chapters 22-17 and 34-23A permit any action that is prohibited by this Act. To the extent that any provision of chapters 22-17 and 34-23A might be so construed, the provisions of this Act take precedence. Section 9. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows: Nothing in this Act authorizes a physician to perform an abortion unless the physician complies with all other applicable provisions of law, including the applicable provisions of chapter 34-23A. Section 10. That chapter 34-23A be amended by adding thereto a NEW SECTION to read as follows: Any physician who performs an abortion pursuant to section 2 shall submit a written statement to the Department of Health setting forth the following information as it relates to each and every abortion performed by the physician: (1) The subdivision of section 2 of this Act pursuant to which the abortion was performed; (2) All of the facts and circumstances upon which the physician relied in complying with all of the requirements and conditions of that subdivision. The written statement shall be submitted to the Department of Health at the end of each quarter of the year in which any abortion was performed by the physician. No statement made pursuant to this section may include the name of any pregnant mother having an abortion. Section 11. That chapter 22-22 be amended by adding thereto a NEW SECTION to read as follows: Any law enforcement authority receiving a report of a rape shall, upon written request of the victim, provide the victim or her designee with a copy of the record of the report. Section 12. That chapter 22-22A be amended by adding thereto a NEW SECTION to read as follows: Any law enforcement authority receiving a report of incest shall, upon written request of the victim, provide the victim or her designee with a copy of the record of the report. Section 13. Nothing in this Act repeals, by implication or otherwise, any provision not explicitly repealed. Section 14. If any provision of this Act is found to be unconstitutional or its enforcement temporarily or permanently restrained or enjoined by judicial order, the provision is severable; and the other provisions of this Act remain effective, except as provided in other sections of this Act. Section 15. This Act shall be known, and may be cited, as the Women's Health and Human Life Protection Act.
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