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Religious Tolerance logo

The South Dakota anti-abortion law

Does the law outlaw emergency contraception?

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The problem:

Citizens of South Dakota will be voting on what is commonly referred to as "the abortion ban," on 2006-NOV-07. Its legal name is "Referred Law 6." A simple majority rule  will determine whether the law will come into effect, or be abrogated.

As written, the South Dakota law certainly criminalizes RU-486 -- the abortion pill -- as well as other  medically induced abortions, and surgical abortions. But Section 3 of the law appears to be ambiguous concerning emergency contraception (a.k.a. EC and the "morning after pill"). It appears that:

bulletAn argument can be made that the law criminalizes the sale of EC.
bulletA counter argument can also be made that the law does not impact the sale of EC. This is the position taken by at least some individuals and groups who support the law.

This ambiguity may have been caused by:

bulletCarelessness by the bill's authors.
bulletLack of knowledge by the framers of the law.
bulletThe intentional inclusion of an ambiguous stealth clause -- a clause that seems to allow the sale of EC. However it is written so that a future court may rule that the clause actually bans the sale of EC in the state.

How emergency contraception works:

EC consists of two elevated doses of a regular oral contraceptive. The first is taken as soon as possible after unprotected intercourse; the second is taken 12 hours later.

bulletIf an ovum has not been recently released from an ovary, the medication will usually prevent its release.
bulletIf an ovum has recently been released, EC may prevent it from being fertilized.
bulletIf the ovum has already been fertilized, but has not become imbedded in the wall of the uterus, it is believed that the pills will alter the lining of the uterus, thus inhibiting the implantation of the embryo.  
bulletIf the pre-embryo has already attached itself to the uterine wall, the pills will have no effect. The pregnancy will continue normally.

What does the law specifically state?

bulletSection 2: "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. No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being. Any violation of this section is a Class 5 felony."
bullet Section 3: "Nothing in section 2 of this Act 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." 1
bullet" 'Pregnant:' the human female reproductive condition, of having a living unborn human being within her body throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and child birth;"
bullet" 'Unborn human being:' 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;
bullet" 'Fertilization:' that point in time when a male human sperm penetrates the zona pellucida of a female human ovum.

Is EC a contraceptive or an abortifacient, or both?

This is a key question. If it is a contraceptive, then Section 3 would authorize it to be purchased. If it is an abortifacient, then Section 3 would not apply. Section 2 would then prohibit the sale of EC.

There is no consensus on the definition of "contraceptive." The authors of the bill did define three terms in the bill. However, either by oversight or intention, they did not include a definition of the contraceptive.

Pro-lifers generally follow the etymology of the term: "contra" means against; "ceptive" refers to conception. They define a contraceptive as being any medication or device that prevents conception. It may prevent the sperm from entering the vagina. It may prevent the release of an ovum. It may prevent fertilization of the ovum. They believe that EC is acting as a contraceptive in these situations. However, they generally define the start of pregnancy as extending "... throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and child birth," as the law states. If the ovum has already been fertilized, and the EC prevents it from implanting in the womb, then most pro-lifers believe that EC acts as an abortifacient. They maintain that It does not prevent a pregnancy; it terminates a pregnancy. Thus, many believe that EC can act as a contraceptive in some instances, or as an abortifacient in others

Pro-choicers, physicians, etc. typically define a contraceptive as any medication or device that prevents pregnancy. They further define pregnancy differently from the definition given in the law. Pregnancy starts not at conception, but at the time that the pre-embryo implants itself in the wall of the uterus. It does not really matter whether, for a specific woman having had unprotected sex, EC prevents the release of an ovum, or prevents its fertilization, or prevents the pre-embryo from implanting. In all three cases, a pregnancy has been prevented. Thus, they regard EC is a true contraceptive.

What are the activists saying?

Opponents of Referred Law 6 started their television ad campaign on 2006-SEP-18 by claiming that victims of rape or incest would have "no options" if the law becomes active. That is, a woman would be forced to give birth if conception occurs -- unless a miscarriage happens, or the pregnancy threatens her life.

At least some of those favoring the law say that this is false advertising:

bulletDakota Voice "looks at the issues from a Christian perspective and a Biblical worldview." Editor Bob Ellis wrote:

"Medical care to prevent pregnancy, care to detect and treat sexually transmitted disease, and care to assist victims in dealing with the mental health issues involved in an assault all remain legal under Referred Law 6. "

"Further, since Referred Law 6 was put on the ballot, women have been given the additional option of over the counter sales of the so-called 'morning after pill'. "

The latter statement is true. On 2006-SEP-18 women could purchase EC over the counter. However, it is not clear whether this option will still be available if Referred Law 6 comes into effect. Also, EC is not 100% effective. A substantial percentage of rape and incest victims who conceive, and who take EC will end up pregnant and be forced to give birth. Also, many victims of incest have no access to EC. Rape victims are often in an emotional state that would make it unlikely for them to obtain EC.

bulletVoteYesForLife.com unveiled its first TV commercial on 2006-OCT-05 in support of Referred Law 6.  The ad features a woman from South Dakota saying: "Referred Law 6 does not change the fact that women can still use the morning-after pill." 3

This statement is also true. The law would allow a woman to use EC. It would even allow a woman to take RU-486 (the abortion pill) if she wanted to. The law does not outlaw a woman taking any medication; it merely regulates whether a person can administer, prescribe, procure, or sell them to her.

The law's ambiguity:

The only ambiguity that we have found in the law is Clause 3. It allows the sale and use of contraceptive medication. All or essentially all pro-choicers consider EC to be a contraceptive; thus they would interpret the law as allowing EC to be prescribed, sold, administered and taken. But the vast majority of pro-life advocates consider EC to be a potential abortifacient. To them, Clause 3 might not apply to EC. It is an open question how courts would rule on this point.

Argus Leader wrote:

"A 2005 study showed that only slightly more than half of all pharmacies in South Dakota offer emergency contraception, and pharmacists who do not offer it do not have to offer it."

It is likely that if this ambiguity in Clause 3 becomes general knowledge, the supply of EC in South Dakota will dry up very quickly, and enforced child-bearing for women who conceive will be the norm. Few pharmacists would risk being charged with a Class 5 felony.


At first glance, Section 2, which almost eliminate access to abortion, and Section 3 which may prohibit the sale of emergency contraceptives -- may seen to be at odds with each other.  After all, the main reason why women seek abortions is to end an unwanted pregnancy. Emergency contraception prevents unwanted pregnancy, and thus has the potential to drastically lower abortion rates. But it all makes sense if one observes the philosophical underpinnings of the bill. It is based on an analysis by the South Dakota Task Force to Study Abortion. They concluded that human personhood starts at fertilization when a new and unique DNA is produced, not when a pre-embryo implants in the lining of the womb. Within this definition, emergency contraception can, in rare cases, act as an abortifacient. To the Task Force, to allow a woman access to EC is thus as evil as allowing her to have a surgical abortion.

If the law comes into force, it will prevent access to medical and surgical abortions by poor and young South Dakota women. However, adult women who have sufficient financial resources can generally travel to a nearby state or country and have an abortion there.


The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Text of HB 1215: "An Act to establish certain legislative findings, to reinstate the prohibition against certain acts causing the termination of an unborn human life, to prescribe a penalty therefor, [sp] and to provide for the implementation of such provisions under certain circumstances," at: http://legis.state.sd.us/.
  2. Bob Ellis, "Opposition to South Dakota Abortion Ban Goes Negative, Deceptive," Dakota Voice, 2006-SEP-18, at: http://www.dakotavoice.com/
  3. Jill Callison, "Abortion ban backers launch TV ad campaign. Focus is 'clearing up misconceptions'," Argus Leader, 2006-OCT-06, at: http://www.argusleader.com/

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Copyright © 2006 by Ontario Consultants on Religious Tolerance
Latest update: 2006-OCT-09
Author: B.A. Robinson

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