A collage of South Dakota's main government building and two websites, one with the message "Only You Can Make This Choice" and the other says "Pregnant Scared Confused: We Can Help"

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South Dakota Is Rebooting Its Abortion-Shaming Bill

The state's legislature is weighing a new anti-choice bill forcing women to be "counseled" at crisis pregnancy centers, after the courts said no the first time. Will they get it through on the second try?

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The South Dakota legislature is weighing a bill, SB110—sponsored by dozens of Republicans—that makes it mandatory that before a pregnant person has an abortion, she first must visit a crisis pregnancy center in the state and presumably let that center have a shot at talking her out of terminating her pregnancy.

If you’re experiencing déjà vu there’s a reason. This is not the first time the state has tried to make that happen. In 2011, the South Dakota legislature also passed a bill that required that pregnant people visit a crisis pregnancy center in between the initial appointment at an abortion clinic and the follow up to terminate the pregnancy—adding on a 72-hour mandatory waiting period in order to facilitate that extra hurdle (the previous waiting period was only 24 hours long). At the participating CPC, the patient was allegedly supposed to be evaluated in order to see if she was being “coerced” into having an abortion. Only after she was given the go-ahead from a “counselor” at the CPC would the eventual abortion clinic be allowed to end the pregnancy.

Ironically, the bill was opposed not just by abortion-rights supporters, but also by a number of local crisis pregnancy center owners, too. After all, if they were supposed to sign what essentially came down to being an “abortion permission slip” and a pregnant person then received her abortion after, aren’t they in essence facilitating a person’s ability to end a pregnancy? Despite this fact, it easily passed, and once Republican Governor Dennis Daugaard signed the new law (first waiting until generous donors offered to cover the expenses of the inevitable lawsuit), it was just a matter of time before courts got involved.

The waiting period stayed intact, but the mandatory CPC visit was blocked as violation of privacy for forcing pregnant people to disclose their condition to these outside centers (not all of which were medically accredited or even had medical or licensed staff on site) unnecessarily, as well as likely putting abortion out of reach for many patients due to the additional resources required to jump through all of the hoops. But that just made the state of South Dakota double-down. Two years later they introduced a new bill and made the waiting period even longer by eliminating weekends and holidays from being considered part of the 72-hour wait. Their reason? According to the bill’s sponsor, “The law needs to be changed in case the counseling requirement takes effect. Counselors in pregnancy counseling centers might not be available on weekends and holidays, so the law should make sure centers have time to meet with women considering abortion.”

Sadly, that passed, too, also becoming law, and was not challenged in the courts, either.

With mandatory crisis pregnancy center visits firmly blocked for more than six years now, why is the state of South Dakota, in essence, trying to pass a nearly identical bill to the one that it already passed in 2011? After all, if the courts said it was an undue burden and a violation of privacy then, how could it not be just as unconstitutional now?

The first question is whether the bill is actually meant to create any changes to the law at all. At a quick glance, it appears more interested in creating a legislative record that accuses Planned Parenthood in Sioux Falls – the only abortion clinic in the state – of not following current law when it comes to South Dakota’s very extensive (and medically inaccurate) “informed consent” rules.

Lawmakers appear especially piqued by the clinic’s practice of prefacing the more politically charged, shaming and medically biased portions of the information with the phrase “politicians in the State of South Dakota require us to tell you…” and then adding that they disagree with the state’s language. The new bill states that Planned Parenthood’s approach to relating their mandated information is “not in keeping with the spirit and purpose of” the previous legislation.

“The Legislature finds that the use of the phrase ‘politicians in the State of South Dakota require us to tell you that…’ is antithetical to the purpose and effectiveness of the disclosures, and evidences a hostility to the required disclosures and signals to the pregnant mothers that the required disclosures, to the extent they are made at all, should be ignored,” the new bill complains, chastising the clinic for not presenting their mandated disclosures in a way that will make patients “fully understand that the pregnant mother has an existing relationship with her unborn child while the child is in utero, that the law recognizes this relationship has value to her, and that by terminating that relationship she loses something of great value to herself, and gives up one of  the greatest rights she has in all of life.”

Leave it to a bunch of conservative (mostly male) strangers to think that they get to decide what is or isn’t a great value to an individual they don’t even know, or to proclaim that birthing a child is “one of the greatest rights” a person has—obviously outranking those pesky “unalienable rights” like life, liberty, and the pursuit of happiness. After all, if having a child was truly the greatest of all rights, there would be far less effort put into denying same-sex couples the right to foster and adopt, or stopping surrogacy and all forms of assisted reproductive technology.

If the South Dakota bill really is just a way to insert a mass of anti-Planned Parenthood complaints into yet another legislative record, well, it wouldn’t be the first time that abortion opponents used bills that were going nowhere to grandstand about how very pro-life they are. But there may still be a real effort inside this bill to try to get mandatory CPC visits out of their court-ordered purgatory. Unlike its predecessor, SB 110 doesn’t ask CPCs to provide a permission slip or any other sort of acknowledgment that could be seen as facilitating an eventual abortion—it only provides a path for the “counselor” to inform the eventual provider of potential coercion and stop an abortion from being performed. It also forbids these CPCs from discussing religion without written permission from the patient, a rule that could help it in a legal battle since an original concern was that it imposes religion on a person who is trying to access medical care. And it also liberally invokes and references Planned Parenthood v. Rounds, the 2012 8th Circuit decision that upheld  South Dakota’s right to demand biased informed consent language like “doctors believe there may be an increased risk of suicide associated with abortion” as long as they do not say it has been proven—which would be a lie. The carefully selected clean-up of a number of issues that kept the previous mandatory CPC visit blocked by courts six years ago would signal that the state has at least some hope of this bill making it back to the courts again.

What’s most ironic is that the politicians of South Dakota could very well pass a bill forcing patients to visit a crisis pregnancy center and receive inaccurate medical information in order to access a legal and constitutionally protected medical procedure just at the same time that the Supreme Court of the United States begins hearings on truth in advertising when it comes to how these CPCs position themselves in the abortion access landscape. In March, pregnancy centers will argue that they are constitutionally protected from laws that would require them to state up front and accurately that they neither provide or refer for abortions—a disclosure that the state of California required because pregnant people were visiting them believing that they were actually entering abortion clinics. Meanwhile, South Dakota is mandating pregnant people have to visit these clinics in order to obtain an abortion, and it is the abortion clinic that is having its free speech rights restricted.

But after all for abortion opponents, there is no right as “great” as the right to give birth—and that includes the rights to privacy, free speech, or any constitutional rights at all.

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