This story was updated with the following correction: In South Dakota, telemedicine abortion is now illegal and a person that prescribes the pills for the termination of a pregnancy could face a Class 6 felony.

SIOUX FALLS, S.D. (KELO) — With the fall of Roe v. Wade, power has been returned to the states to decide what to do in terms of abortion access. But what that means for legal jurisdiction and enforcement is still uncertain across the country.

“There’s no clear answer on so much of this, like we’re in uncharted territory,” University of South Dakota Professor of Law Hannah Haksgaard said.

While Roe v. Wade had been settled law for nearly 50 years, Haksgaard said abortion has always experienced restrictions across the country.

For example, Haksgaard pointed to South Dakota’s 72-hour-waiting period that was required before the trigger ban. The Supreme Court had said that a 24-hour-waiting period would be “fine” but South Dakota pushed the limit of that. 

“So, in South Dakota passing that they were signing up for a court case, right?” 

While that requirement is now moot due to the Dobbs decision, Haksgaard says other states are in for similar legal fights.

“But it’s sort of similar if a state is going to try to criminalize women who cross borders, and we’ll have a court case about it. You know, states, the pro-life states who push the boundaries, under the old Supreme Court precedent, many of them will push the boundaries now,” Haksgaard said.

But what that means for how states will proceed with new laws and whether that jurisdiction will extend beyond state lines is uncertain, according to Haksgaard.

Some lawmakers across the country have expressed interest in punishing a person for travelling outside of state lines to receive abortion. In South Dakota, Representative Jon Hansen (R-Dell Rapids) expressed via Twitter on May 16 that he would advocate for a requirement that “out of state abortionists” refer pregnant South Dakotans to third-party counseling for “pressure and coercion” before being allowed to terminate a pregnancy outside of South Dakota.

When KELOLAND News spoke with Hansen on June 29, he said he opposed women leaving the state for abortions but was unsure if they could bring legislation on the issue.

“At this point, there’s a lot of legal uncertainty in how states will proceed and what new laws will be constitutional or not,” Haksgaard said.

For abortion providers in states with trigger bans, Haksgaard says they will have to consider how much litigation they’re willing to risk in enforcing more restrictions.

“Let me phrase it this way: Whichever states pass new, innovative restrictive laws, they’ll be spending the money to litigate those laws,” Haksgaard said.

While the Dobbs decision was less than three weeks ago, abortion-rights organizations have already begun moving defensively to protect access in states like North Dakota where a trigger ban was supposed to take effect on July 28.  

The lawsuit, which was filed by the Center for Reproductive Rights on behalf of the Red River Women’s Clinic, claims the trigger ban would deprive patients the ability to “control decisions about their family and health” as well as violate the right to life, liberty, safety and happiness as guaranteed by the North Dakota Constitution.

In addition to the lawsuit, the clinic is contemplating moving from Fargo across the river to Moorhead, Minnesota to continue serving the same population. It’s one way abortion providers are attempting to navigate the new legal landscape in a post-Roe world.

In Montana, where abortion is a protected constitutional right, Planned Parenthood has announced they will no longer provide medication abortions for out-of-state patients due to the ever-changing legal landscape. Montana Planned Parenthood’s saw a large number of patients traveling from South Dakota.

Meanwhile, in states like Colorado and Minnesota, lawmakers and abortion providers are preparing for a surge in out-of-state visitors.

On Monday, Ramsey County District Judge Thomas Gilligan ruled the majority of Minnesota’s abortion restrictions were unconstitutional. That ruling, which is effective immediately, removed restrictions such as the state’s mandatory 24-hour waiting period, requiring consent from parents in an abortion involving a minor, providing information on risks of abortion, gestational age, fetal pain, risks of pregnancy and welfare benefits for prenatal, child birth, and neonatal care.

Dr. Sarah Traxler with Planned Parenthood North Central States told the Associated Press they expect to see an increase of demand up to 25%.

Last week, President Joe Biden announced an executive order that would protect abortion access in the country. Included in the order was protection and access to abortion medication.

In South Dakota, telemedicine abortion is now illegal and a person that prescribes the pills for the termination of a pregnancy could face a Class 6 felony.

When asked how the federal executive order would impact current South Dakota law, Governor Kristi Noem said “South Dakota’s trigger law and telemedicine abortion ban remain the law of the land.”

It’s this kind of situation that Haksgaard pointed to as potential legal conflict between state and federal government agencies.

“So, as a general matter, if federal law and state law conflict, we follow federal law,” Haksgaard said. “So, the Biden administration appears to be working toward a system where they’re going to make some statements that say, federal law requires like medication abortion, and so states can’t ban medication abortion, because federal law allows it.”

The Biden administration has expressed support to continue to protect abortion access and develop policy that would do so which could have some impact on states with restricted access but…

“Now that’s a risky pro-choice strategy because once a pro-life president is in power, he can kind of undo a lot of that to the extent that it comes from agencies or from the executive. But for now, of course, it works because Biden is in office,” Haksgaard said.

Privacy issues to arise

There’s also a lot of uncertainty for what the Dobbs decision will mean for doctor-patient privacy. The Roe decision, at its core, was a privacy case. Haksgaard says the privacy aspect of the Roe decision has been lost in the conversation over the years, but the overturning of the decision presents another unanswered question for medical and legal professionals.

“Imagine a woman comes in [to a hospital] who did a self-induced abortion, because we know that there will be self-induced abortions when they’re no longer available legally,” Haksgaard said. “And there becomes a privacy issue if an emergency room doctor is required to report a suspected self-induced abortion as a crime. Well, that’s a pretty big privacy problem.”

Haksgaard explained that while there are some exceptions to privacy between a doctor and patient, for example reporting child abuse, it is not yet clear how states will require disclosure when it comes to abortion. 

In South Dakota, Governor Noem and several anti-abortion lawmakers have made it clear that punishment for abortion will fall primarily on physicians. 

For health systems like Sanford Health and Avera Health that have locations across several states, Haksgaard says there is already precedent for hospital policy to differ based on each state’s laws. That will likely continue, she added.

“So, you can imagine, if one state only allows for abortion when the life of the mother is under threat, well, that’s going to be a higher bar than a state that says if the health of the mother is under threat, so it could be a depending on what jurisdiction you’re in,” Haksgaard said.

In states like South Dakota where abortion is now illegal, Haksgaard said doctors may take longer to consult with legal teams if an abortion procedure is needed in cases like ectopic pregnancies or other medically necessary situations.

The lack of legal certainty will likely result in more expenses for hospitals.

“It’s more time doctors spend consulting with lawyers, it’s more hours of legal work,” Haksgaard said. “I mean if every time a woman in crisis comes to a hospital, and the doctor has to consult with the legal team to make sure that the law allows an abortion under this woman’s kind of health problems. I mean, it obviously increases the expense for the whole system.”