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Pondering South Dakota’s New Abortion Law

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Something that always bothers me about the abortion debate is the tendency to cast it in black and white terms. Proponents of South Dakota’s new abortion law seem to think abortion is used only for birth control. Opponents tend to focus on rape and incest and the desirability of letting the woman choose whether to continue a resulting pregnancy. Gray areas tend to be overlooked.

Gray areas often come from “what ifs.” Does or should changing this or that fact in any particular situation affect the handling and outcome? There are plenty of “what ifs” in the abortion law. Several come to mind:

Item one: The law’s “findings” state that “life begins at the time of conception” and the statute defines an “unborn human being” to exist from the moment sperm penetrates the ovum. Assume a married couple goes to a fertility clinic and, as is common, multiple embryos are created. Those embryos not used in the first fertilization attempt are placed in cyropreservation. That first procedure is successful. Under the statute, the remaining embryos are an “unborn human being.” At the same time, the statute appears to only prohibit procedures performed on a pregnant woman. As none of the embryos have been implanted, does the statute protect the embryos if mom and dad decide they should be destroyed?

Item two: The only exception to the law is “to prevent the death of a pregnant mother,” with the physician being required to make reasonable efforts “to preserve both the life of the mother and the life of her unborn child.” Assume a woman two months pregnant is diagnosed with cancer. There is a 90 percent survival rate if she immediately begins a course of radiation or chemotherapy. The survival rate drops to 50 percent if she carries the fetus to term. There is a 100 percent chance either treatment will cause irreversible and potentially fatal damage to the fetus. Does the exception allow mom a choice here? Or does the fact she still has a 50-50 chance if she carries the baby to term mean only the “health” of the mother is endangered, an exception the South Dakota Legislature specifically rejected? Where is the dividing line between acting to protect the health of the mother and acting to prevent her death? Is it when the chances of survival drop to 40 percent? 25 percent or 10 percent?

Item three: A far more common variation on the prior scenario would be an ectopic pregnancy, where a fertilized egg implants somewhere other than the uterus (e.g., the fallopian tubes). Because it is impossible for an ectopic pregnancy to go to term, the only treatment is terminating the pregnancy. Since a fertilized egg is, by definition, an “unborn human being,” does the sole exception to the statute forbid surgical or nonsurgical medical treatment that would terminate the pregnancy if mom’s life were not at risk? Must a doctor wait until mom is in danger of dying before embarking on treatment? Must death be imminent, likely, or only a possibility?

Item four: Prenatal tests reveal the fetus has anencephaly, a condition that occurs in one out of 1,000 live births. A fetus with this condition never gains consciousness and, if not stillborn, usually dies within a few hours or days after birth. The law apparently would require mom to carry the fetus to term because there is, by definition, an unborn human being and the condition does not pose a risk of death to mom. I know a woman who faced this situation a few years ago. She and her husband decided to carry the pregnancy to term. The baby — which would have been their first — was stillborn. No one would wish that situation on anyone. There is no good answer and it would be difficult to criticize them for whatever decision they made. But the key is my friend and her husband were allowed to decide themselves, something the new law would forbid.

Situations like these are what make my state’s actions so disconcerting. No one wants to face these issues in their own life. Unfortunately, the rhetoric that has surrounded this legislation too often ignores those who do confront them, and the law plainly does so.

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About Tim Gebhart

Tim Gebhart is a book addict living in Sioux Falls, S.D., where he practices law to provide shelter for his family, books and dogs.
  • Druxxx

    Great article.

    The pro-life side largely wants to ignore these issues. The exceptions these situations cause could be exploited.

  • http://beyondbabylon.blogspot.com David Ben-Ariel

    South Dakota sets a shining example for every state to follow, so help us God. Abortion must be seen as the bloody atrocity that it is, having hidden its gruesome self behind sanitized terms like “choice.”

    The pro-death knell has rang too loud and for too long. It’s past time to silence such murderous clamor and restore sanity and personal responsibility across this Promised Land lest American abort its future.

    South Dakota represents the conscience of America. They offer a glimmer of hope and have courageously stood up for LIFE.

    Abortion: Blood of Innocents (Jeremiah 7:31)

  • http://ruvysroost.blogspot.com Ruvy in Jerusalem

    Tim, from looking at the provisions of the law you have described, it will be in trouble right away. It seems vague to the point of idiocy in dealing with serious problems, but it does at least tries to provide some definitions. It is my sneaking suspicion that a state judge may throw it out on its own weaknesses. But you know the judges in SD better than I would…

    Nice job. Who knows? You might get some interesting litigation out of all this. And if the litigation pays, you can buy an extra bag of dogfood… 😉

  • Nancy

    And ALL of it begs the question that this is legislation set up by a group of MEN to control WOMEN.

  • http://ruvysroost.blogspot.com Ruvy in Jerusalem

    Nancy, that may be true. But if memory serves, it is not a justiciable issue in a court of law in the States. At this point, that is where the future of this legislation will be decided.

    A lawyer fellow who occasionally contributes to this site reminded me more than once of the importance of relevance in looking at an issue.

  • http://jpsgoddamnblog.blogspot.com JP

    Sadly, the political objectives of passing this bill so soon after Alito’s confirmation are beyond obvious. Leaving out the obvious rape and other exceptions is foolish, but to make a point. Passing a law that is, by a 30-year-old Supreme Court ruling, unconstitutional is a way to revive the old debate–and to force the “culture war” into the 2006 election cycle. Predictable.

  • Druxxx

    JP, you are totally right about the reason for this bills passsage. I still cannot see the SCOTUS giving this bill the OK. There have to be more exceptions.

    David Ben-Ariel, I would love it if you as a person of pro-life persuasion would give us your insite on the issues Tim presents in this article.

  • http://desicritics.org Aaman

    Great, reasoned examples – it’s stunning that the Mullahs of the West are as anal as the Mullahs they oppose

  • Bliffle

    So, what’s the penalty for getting an abortion? The chair?

  • La

    I could never figure out why the dems are opposed to abortion. It’s killing off potential voters, tax payers, welfare recipients….

    Gosh, the government ought to be paying women to pump out as many as possible! There future value in those tax dollars!