Are the abortion ban’s exceptions enough?

By Mary Garrigan, Journal staff | Thursday, October 23, 2008

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Two years ago, South Dakotans soundly rejected an abortion ban that had no exceptions for rape, incest or the health of the pregnant woman. On Nov. 4, they’ll vote on another abortion ban whose fate centers on what people believe about the exceptions it does include.

South Dakota Campaign for Healthy Families and other opponents of Measure 11 dispute the claim that it is a different kind of abortion ban, one that contains the exceptions voters said they wanted after rejecting Referred Law 6 by a vote of 56 percent to 44 percent in 2006.

In the 25-minute video, “South Dakota Faces Abortion,” the Rapid City women’s advocacy group Democracy in Action also insists that Measure 11 is incorrectly publicized.

“Measure 11 is publicized as a ban with exceptions, but they’re really not there,” Rapid City lawyer Jim Leach said. “Now, we’ve got a law that has fake exceptions for life and health of the mother, and fake exceptions for rape and incest.”

VoteYesForLife.com campaign manager Leslee Unruh dismisses the characterization that Measure 11’s exceptions are meaningless as “pure spin.”

“This is their Achilles’ heel. They know that,” Unruh said.

Leach offers his legal opinion of Measure 11 in the film and contends that all of its exceptions, as written, are so invasive to women and so burdensome and intimidating to medical doctors that if it becomes law it would constitute a total abortion ban in South Dakota. “No doctor in his right mind would do an abortion under those exceptions,” Leach said.

Exceptions for the life and health of the pregnant woman come with the condition that there must be “serious risk of a substantial and irreversible    impairment of the function of a major bodily organ or system of the pregnant woman.”

“Who knows what that means? I don’t think anybody knows,” Leach said. Nothing in the law protects a physician from being second-guessed by a pro-life doctor or lawyer who disagrees with his or her abortion decision, he said.

If an anti-abortion doctor or lawyer working for the state    reviews the medical records and thinks the doctor is wrong, that physician can be charged with a Class 4 felony and, if convicted, sent to prison for 10 years, Leach said.

Dr. Marvin Buehner, a Rapid City obstetrician and gynecologist, wrote the ballot explanation in opposition to Measure 11.

Buehner believes the exceptions for life and health of the pregnant woman are wide open to interpretation and would    prevent him from ever performing an abortion in the state.

“Maybe, maybe not,” Buehner says on film when asked if the legal exceptions would protect him if he performed a medically necessary abortion. “But I don’t think I’m willing to risk 10 years in prison and $25,000 in fines to find out.”

Dr. Glenn Ridder, a member of Physicians for Life from Sioux Falls, rejects Buehner’s concerns and says Measure 11    adequately deals with physicians concerns about patient care. The law is written to end abortion as birth control, not to prevent life- and health-saving abortions, he said.

Rape is common in America, according to Dr. Anne Fisher, an emergency room physician who appears in the film. Fisher has been treating rape victims for 20 years and said some estimates give women a one in eight lifetime chance of being raped. Physicians and hospital emergency rooms don’t see anywhere near that number of rape victims, Fisher said, which means many rape victims either do not seek medical care or do not want to report it to law enforcement, for numerous reasons. One of those is their safety, as one of the film’s unidentified women who procured an abortion says. “The police aren’t there 24 hours a day. They can’t protect you 24 hours a day,” she said.

“We know there are many, many women who do not report their rape,” Fisher said.

Unruh argues that Measure 11’s reporting requirements for rape and incest benefit women by putting rapists behind bars. “Let’s put these guys in jail. Let’s all work together as true feminists and do something about this,” she said.

To qualify for the rape or incest exception under Measure 11,  those crimes must be reported to the authorities before an abortion is performed. The report must include the name, address and age of the woman, as well as the name, address and age, or a physical description, of the alleged rapist. Incest victims must identify their relationship to the alleged perpetrator. DNA tissue samples from the woman and the aborted fetus must be collected by the physician and transferred to law enforcement. So must the woman’s medical records, with names redacted, if requested by the state Department of Health.

“That’s wrong,” Leach said. “I don’t want my medical records sent to the state or federal government because its none of their business.”

Those requirements create onerous red tape for physicians, and they violate the privacy of victims who choose not to report, said Jan Nicolay, co-chairwoman of the South Dakota Campaign for Healthy Families, in a news release.

“Proponents of this abortion ban are attempting to paint a rosy, simple picture of what is an incredibly complicated law that would negatively impact the health and well-being of women and families in South Dakota,” Nicolay said.

“Women and families facing a pregnancy involving a fatal fetal anomaly or other health complications should be able to make their own medical decisions without government intrusion. Banning abortion is bad policy, and Initiated Measure 11 would have serious consequences.”

Unruh called the law “extremely well written” by a panel of 11 legal experts under the direction of Attorney General Larry Long.

“The medical community of South Dakota is telling voters that there really is no exception in this law for the health of pregnant women,” Healthy Families campaign manager Michelle Trupiano said. “Vote YesforLife continues to insist, against the assessment of some of the state’s most respected medical (providers), that this ban is ‘not unreasonable.’ Clearly, most doctors that serve the women and families in this state think otherwise,” Trupiano said.

The South Dakota State Medical Association’s Council of Physicians officially opposes Measure 11 because it is    detrimental to the physician-patient relationship, they say.

If you go

Democracy in Action’s Measure 11 forums continue on Thursday, Oct. 30, with “Medical and Legal Ramifications of Initiated Measure 11,” featuring a panel of lawyers and doctors. The 7 p.m. forums are free and open to the public at Dakota Middle School.

See related stories:

Are the abortion ban’s exceptions enough?

Who gets abortions in South Dakota? A quick profile

Campbell: Reluctant face of Vote No ads

Billboard helped Rieman choose not to abort baby

Initiated Measure 11 Ballot Question