South Dakota Revised Abortion Ban Contains Controversial Health Exception

State   |   Steven Ertelt   |   Jan 5, 2008   |   9:00AM   |   WASHINGTON, DC

South Dakota Revised Abortion Ban Contains Controversial Health Exception Email this article
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by Steven Ertelt Editor
January 5,

Pierre, SD ( — Some South Dakota lawmakers who are disappointed that voters rejected an abortion ban in 2006, that had only a life of the mother exception, are putting forward a new bill to try again. However, the working proposal appears to contain a health exception that pro-life advocates have traditionally said renders such bills meaningless.

Media polls showed after the 2006 elections that a majority of state voters would accept a ban as long as it had rare rape and incest exceptions in place.

The revised ban that a group of lawmakers and citizens are proposing contains those exceptions, but also contains a health exception that, under the Supreme Court case Doe v. Bolton, allows for abortions for virtually any reason.

In a memo dated October 10 that recently obtained, pro-life attorneys Harold Cassidy and Samuel Casey of the Christian Legal Society set forth the language of the new ban, that was officially introduced in December.

They say the ban would prohibit abortions as a method of birth control "as long as it would remain legal to have an abortion in cases of rape or incest or when there is a risk to the life or of serious injury to the health of the mother."

That’s normally code for allowing any abortions but Cassidy and Casey contend including a health exception will help undermine the argument that abortion benefits a woman’s health.

"It is important to understand that the exception for the health of the mother makes it more likely that the proposed Abortion Bill will win in court compared to a bill that had no such exception," they said.

With the intent of the South Dakota abortion ban to overturn Roe v. Wade, the attorneys argue the reversal of the so-called right to an abortion is the only thing that would occur if Roe is reversed. They say it would not overturn the right of a mother to protect her own health.

They hope to get Roe overturned and to come back later with another case removing the health exception to overturn the Doe companion decision.

"We need to get rid of Roe before we can get the courts to think more clearly on other issues," the pair argues. "In the long run, the proposed abortion bill will result in showing why a health exception is not needed."

The new ban would represent an even more incremental approach than favored by National Right to Life and other groups that are willing to ban most abortions and include only rape and incest exceptions.

A health exception was a contentious issue during the debate over partial-birth abortions and Rep. Steve Chabot, an Ohio Republican and attorney who shepherded the ban in the House, previously said such exceptions render bans meaningless.

"The problem with the health exception is we have a number of abortionists who have testified that any pregnancy is a risk to a woman’s health," he previously said.

"So if you have a health exception in there, in essence, you have a phony partial-birth abortion ban," he explained.

But Cassidy and Casey say that the South Dakota ban would contain findings from the state’s abortion task force that would show how abortions cause women health problems. They say that would serve as legal precedent for a second effort later to stop abortions for health reasons.

There were 748 abortions performed in South Dakota in 2006, down from the 805 abortions performed in 2005, the South Dakota health department recently reported.

The South Dakota Department of Health reported that just 1.9 percent of all abortions there in 2006 involved threats to the mother’s life or rape or incest as a reason for the abortion.

Women were given multiple choices for the reason for the abortion and 85 percent involved the mother not wanting a baby at the time and another 21 percent involved the mother not having the financial means to have a child.

The number of abortions to protect the woman’s life or for reasons of sexual abuse have dropped over the years.