The South Dakota anti-abortion law
Does the law outlaw emergency contraception?
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:
|An argument can be made that the law criminalizes the sale of EC. |
|A 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:
|Carelessness by the bill's authors.|
|Lack of knowledge by
the framers of the law. |
|The 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
|If an ovum has not been recently released from an ovary, the medication
will usually prevent its release.|
|If an ovum has recently been released, EC may prevent it from being
|If 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.
|If 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?
|Section 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."|
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|
|" '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;"|
|" '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
|" '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
At least some of those favoring the law say that this is false advertising:
|Dakota 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.
|VoteYesForLife.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."
This statement is also true. The law would allow a woman to use EC. It
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.
- 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:
- Bob Ellis, "Opposition to South Dakota Abortion Ban Goes Negative,
Deceptive," Dakota Voice, 2006-SEP-18, at:
- Jill Callison, "Abortion ban backers launch TV ad campaign. Focus is
'clearing up misconceptions'," Argus Leader, 2006-OCT-06, at:
Copyright © 2006 by Ontario Consultants on
Latest update: 2006-OCT-09
Author: B.A. Robinson