SIOUX FALLS, S.D. (KELO) — Governor Kristi Noem is ‘excited’ to sign a telemedicine abortion ban into law amidst litigation in federal court that would prevent the law from going into effect.
HB 1318, once signed into law, will codify a rule from the Legislature Rules Committee that would require a patient seeking a medication abortion in South Dakota to make three visits to a licensed abortion provider to receive the drugs necessary to complete the procedure. Gov. Noem has said in the past that this will protect women who attempt to order the drugs online to take at home.
Current South Dakota law requires informed consent to be given in person prior to the dispensation of abortion medication, or surgical procedure. Mifepristone, which is the first drug in the medication abortion procedure, is already required by law to be taken under the supervision of a licensed provider, which in South Dakota refers to Planned Parenthood in Sioux Falls as they are the only licensed abortion clinic in the state.
Noem has said that mifepristone is “four-times more dangerous” for women but data from the Federal Drug Administration (FDA) shows that between September 28, 2000, when the drug received FDA approval and December 31, 2018, there were 24 deaths reported out of the 3.7 million women administered the drug for a medication abortion. That same report states that in that same period there were 97 ectopic pregnancies reported from users of mifepristone.
Of the 24 deaths reported, eight were due to sepsis, two were homicides, two involved drug intoxication/overdose, two died of ruptured ectopic pregnancies, and the remaining deaths were due to the following causes: substance abuse/drug overdose (1), suspected homicide (1), suicide (1), methane overdose (1), drug intoxication (1), delayed onset toxic shock syndrome (1), hemorrhage (1), unintentional overdose (1), severe pulmonary emphysema (1), and one death that could not be determined. The same report lists 4,195 adverse events, 1,042 hospitalizations, 599 blood transfusions, and 412 severe infections in that 18-year period.
“The FDA has agreed that these drugs are safe to be used in this manner so why are our elected officials trying to insert themselves into that kind of decision that’s been made by people with expertise in that area,” Janna Farley, Communications Director for the American Civil Liberties Union (ACLU) told KELOLAND News on Thursday.
In 2021, 40% of abortions performed in South Dakota were medication abortions. The reason a person may choose a medication abortion over a surgical abortion may be the privacy and control it provides a patient over the procedure, Farley said.
The ACLU is currently in the middle of litigation with Noem and the state of South Dakota over telemedicine abortion in the state. At the center of the case is the rule from the Department of Health (DOH) that will be codified as law pending the governor’s signature of HB 1318. Because of this lawsuit, Noem’s telemedicine abortion ban cannot take effect until the injunction issued in the case is removed.
“Essentially, everything stays the same right now,” Farley said.
Farley added that this piece of legislation places lawmakers in the middle of the patient-doctor relationship while also restricting access to abortion in South Dakota.
“Why are people who are not medical professionals trying to make laws about the medical profession?” Farly said. “We don’t want to see anybody get in the middle of that doctor-patient relationship.”
Current procedure in South Dakota does not allow a person to receive abortion medication through telemedicine, Farley says. But if the law were to go into effect it could impact access to abortion care in South Dakota, the ACLU said in a statement Wednesday. A federal judge agrees with the ACLU and Planned Parenthood’s claims that requiring a patient to make three separate visits to Planned Parenthood in Sioux Falls is medically unnecessary and burdensome to both patients and physicians.
Following the injunction from the U.S. District Court, Noem’s legal team filed an appeal with the 8th Circuit Court. As Farley pointed out to KELOLAND News, HB 1318 cannot go into effect until this case is resolved. The bill states that sections 2 and 3 will be enacted when, “…there is no longer an injunction preventing enforcement of the procedures detailed in sections 2 and 3, provided no further appeal is pending or can be made.”
Despite the delay of the law, Gov. Noem was happy about the bill’s passage during a weekly press briefing on Thursday.
“I’m excited to sign that bill when it gets to my desk,” Noem told reporters. “Even though there is some litigation involved the felony portion of that law will be enforced.”
It is not yet clear when the bill will be allowed to take effect, Farley says.
There is a precedent that the court case could take years, though. The state of South Dakota is still involved in a lawsuit with the ACLU regarding pregnancy crisis centers that began over a decade ago in May of 2011. In 2021, Gov. Noem filed for another appeal in the case saying that if it failed, she would attempt to bring the case before the Supreme Court.