Civil Liberties

South Dakota's Fetal Position

State would ban more than abortions


Last week, the South Dakota legislature overwhelmingly enacted a statute that would ban all abortions in the Coyote State except those done to save the life of a mother. The bill requires only the signature of pro-life Gov. Mike Rounds to become law. The legislation is designed to take direct aim at the U.S. Supreme Court's 1973 decision Roe v. Wade, in which the court found that the constitutionally protected right to privacy applied to women's reproductive decisions including allowing them access to abortions.

The South Dakota bill declares "that life begins at the time of conception" and "that to fully protect the rights, interests, and health of the pregnant mother, the rights, interest, and life of her unborn child, and the mother's fundamental natural intrinsic right to a relationship with her child, abortions in South Dakota should be prohibited."

The bill further defines "unborn human being" as 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" and "fertilization" as "that point in time when a male human sperm penetrates the zona pellucida of a female human ovum."

South Dakota's anti-abortion act does not outlaw contraception. The bill reads that "nothing…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."

This language is not a clear as it might at first seem. For example, it generally takes about a week for a fertilized egg to develop into a blastocyst which is capable of implanting itself in a woman's uterus. Then it's another eight days after implantation before the most sensitive commercial pregnancy tests can find that a pregnancy has begun. So "conventional medical testing" cannot detect a pregnancy until two weeks after fertilization, i.e., conception.

Consequently, one possible reading of the statute is that there is a two week window in which the administration of a "contraceptive measure" would be legal and another contradictory reading in which anything after conception would be an illegal abortion. This second reading could outlaw some popular birth control methods. Consider intrauterine devices (IUDs) which can occasionally prevent the implantation of a fertilized egg. And what about high-dosage hormonal emergency contraception such as Plan B, which needs to be taken 72 hours after unprotected sexual intercourse? Again in rare cases, Plan B may halt the implantation of an already fertilized egg.

Parsing the legislation further, perhaps a way out of these legal conundrums is contained in the language that declares "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." The providers of IUDs or Plan B cannot know for sure that an egg has already been fertilized; thus their intent is only to prevent conception.

Yet, in 1998, South Dakota took the lead in the current national debate over whether or not pharmacists can refuse to dispense medication based on the promptings of their consciences. In particular, South Dakota law allows pharmacists to refuse emergency contraception to women to whom it has been prescribed. South Dakota law declares, "No pharmacist may be required to dispense medication if there is reason to believe that the medication would be used to (1) cause an abortion; or (2) destroy an unborn child." Meanwhile, and somewhat contradictorily, the South Dakota legislature is now considering a bill that would require hospitals to offer emergency contraception to women who have been raped.

In the meantime, South Dakota has already banned human embryonic stem cell research and also completely outlaws all human cloning and any treatments or medicines derived from human cloning.

South Dakota law does allow embryos to be created for in vitro fertilization. However, this new bill could be interpreted to outlaw in vitro fertilization in which not all embryos are implanted in a patient's womb. After all, they are by law all "unborn human beings." It could be argued that the law logically requires that all embryos produced by IVF be implanted even if they are genetically defective.

The South Dakota anti-abortion statute could have far-reaching effects not only on women's reproductive choices, but also on the future of much biomedical research nationwide. In a worst case scenario, a U.S. Supreme Court newly packed with anti-abortion justices could use South Dakota's legislation as a vehicle to overturn Roe v. Wade and declare that embryos under the Constitution are people. Such a ruling would not only outlaw abortion nationally, it would also criminalize human embryonic stem cell and cloning research and impose onerous restrictions on in vitro fertilization. America's culture war over who gets to control human reproduction—individuals or the state—is far from over.