SIOUX FALLS, S.D. (KELO) — One week from today women in South Dakota will have to make three visits to a physician to receive the medication necessary to end their pregnancy. The rule was approved by the Legislature’s Rules Committee earlier this month, but a lawsuit filed Wednesday, by the American Civil Liberties Union (ACLU) and Planned Parenthood, aims to stop that from going into effect on January 27.
The new rule would require patients to make three visits to receive medication for abortion. Currently, patients are required to make two visits: one to give informed consent, and the second to take mifepristone under the supervision of a licensed abortion provider and receive misoprostol, which can be taken at home after a minimum of 24 hours. If it goes into effect, the rule would require a patient to return to the same health care provider 24-72 hours after the second visit to be given misoprostol to take under supervision and monitored after.
The lawsuit alleges that the rule violates federal law and would be burdensome on patients, and physicians, financially, as they would be required to take three separate trips to Sioux Falls, creating “insurmountable obstacles for some.”
This is not the only lawsuit against Governor Kristi Noem regarding abortion: Planned Parenthood vs. Noem is currently being appealed by the Noem administration. The state law at the center of the lawsuit would require women seeking an abortion to consult with a crisis pregnancy center. The Associated Press reported in November of 2021 that if the state loses its appeal, Noem will try to bring the case before the Supreme Court.
Telemedicine abortion, and medication abortion, has been a priority for Gov. Noem in recent months. In September of 2021, Gov. Noem issued Executive Order 2021-12 to ban Mifepristone, one of the medications used in a chemical abortion, from being sent via courier, delivery, telemedicine or mail service. When the order was issued, South Dakota had several laws in place that stated an abortion may be performed by a physician in the first twelve weeks of pregnancy, require informed consent from a patient visiting a physician in-person prior to the abortion, and that abortions after twenty-two weeks could only be performed in specific settings.
“South Dakota is a state that values life and prioritizes women’s health and safety above politics,” Gov. Noem said in the executive order. “South Dakotans overwhelmingly support life”
Dina Anderson, Director of Media Relations with Planned Parenthood, told KELOLAND News that due to a telemedication ban that has been in place for several years in South Dakota, Planned Parenthood in Sioux Falls has only been offering medication abortion at the clinic.
At the time of the executive order, Gov. Noem’s communications director Ian Fury said the order was in response to the intent of the Biden administration to potentially do away with the Risk Evaluation and Mitigation Strategy (REMS) protocol that prohibits abortion by mail/telemedicine.
In December of 2021, the U.S. Food and Drug Administration (FDA) made changes to the REMS protocol stating that mifepristone must be prescribed by or under supervision of a certified health professional as well as certified pharmacies, and the provider must receive a patient agreement form after counseling, before prescribing mifepristone.
A few weeks later, the Legislative Rules Committed approved the passage of the new rule.
Gov. Noem issued a statement following the approval saying, “chemical abortions are four times as likely to cause a woman getting an abortion to end up in an emergency room – and we have a duty to protect the lives of those women.”
But the lawsuit filed Wednesday by the ACLU and Planned Parenthood cites the South Dakota Medical Association’s testimony stating that the new rule “does not reflect evidence-based care.” In October, the medical association told the committee that hemorrhage risk increases when a patient does not take misoprostol in the appropriate time frame.
“The clinically unnecessary in-person dispensing requirement for Misoprostol does nothing more than create another barrier for the patient that may result in an increased risk of hemorrhage and bad outcome,” states a letter sent to the committee from the South Dakota Medical Association.
The medical association also expressed concern over how the rule may affect the use of mifepristone and misoprostol outside of abortion procedures. Mifepristone is a common drug used in managing miscarriages while misoprostol is used to prevent stomach ulcers by protecting the stomach lining and is used for the placement and removal of IUDs.
In the lawsuit, the ACLU points out that any other procedure that requires the use of misoprostol would not require a third, in-person visit.
Janna Farley with the ACLU told KELOLAND News Thursday that the rule, if it goes into effect, will violate federal law.
“The rule will violate the due process in the 14th amendment’s equal protection rights for our plaintiff’s and their patients,” Farley said. She adds that the rule would also put additional burdens on patients who are traveling from across the state to complete the procedure.
“Planned Parenthood’s patients can come from anywhere in the state, you know South Dakota is big geographically. For some people it might be hundreds of miles one way,” Farley said.
The lawsuit points to the fact that this will not only put a burden on patients, but physicians as well. At this time, Planned Parenthood has three physicians that travel from out of state twice a week to perform abortion services at the Sioux Falls clinic. If the rule goes into effect, the lawsuit says this would make it difficult to have physicians present for the new timeline of visits to complete abortion procedures.
In a statement to KELOLAND News, Noem’s communications director, Ian Fury, said that with this rule, Noem is “focused on protecting women’s health.”
“The ACLU and Planned Parenthood have shown that they are more worried about their bottom line,” Fury said.
Farley says the ACLU’s lawsuit is about keeping politicians and state agencies out of the doctor-patient relationship.
“We should all have the power to shape our families, to access the health care we need, to decide when or whether we have children and to control our lives,” Farley said. “That’s what we’re fighting for here.”