PIERRE, S.D. (KELO) — Physicians in South Dakota could still prescribe and administer two abortion-causing drugs for other purposes, such as treatment after miscarriage or prevention of stomach ulcers, under tighter new state restrictions that the governor and the state Department of Health want on medical abortions.
But the Legislature’s Rules Review Committee nonetheless deadlocked 3-3 Monday on allowing the department to go forward with the additional regulations on mifepristone and misoprostol. The panel plans to take up the matter again January 6, 2022.
Currently, two trips to an abortion facility are required by South Dakota law for surgical abortions and medical abortions. For medical abortions, mifepristone is administered at the facility and the patient is given misoprostol to take on her own one to three days later to complete the abortion.
The proposed regulations would require a third trip to the facility 24 to 72 hours later to receive the misoprostol.
Senator Timothy Johns, a Republican, sided with the panel’s two Democrats in opposing the changes. Johns, a retired circuit judge, wants testimony from experts about why a third visit would now be necessary for medical abortions.
“I haven’t heard anybody from the medical field that this is what they would recommend as a policy,” Johns said.
Representative Jon Hansen, the committee’s chairman and a strong opponent of abortions in general, described a medical abortion as “a pretty serious event” and said the department was acting within the rule-making authority that the Legislature gave it.
“I think we need to look at the reality. You don’t want to lose one person at all going through this procedure,” Hunhoff said.
Republican Governor Kristi Noem sought the new rules after issuing an executive order September 7, 2021. Representing the department Monday were attorney Ali Tornow and deputy secretary Lynne Valenti.
“The two doses are part of the abortion procedure,” Valenti said, arguing that the procedure can be dangerous to the health of the mother and is ending the life of an unborn child. “We believe the rule enables that intent,” Valenti said.
A Democratic former senator, Nancy Turbak Berry, presented arguments from Planned Parenthood opposing the changes. Turbak Berry said women have taken misoprostol at home for years.
“This is an example of too much government,” Turbak Berry said. “It’s quite simply government overreach.”
The committee’s new code counsel, John McCullough, said his reading of state law was the department could still file the proposed rules with the South Dakota Secretary of State office. The regulations would take effect 20 days later. The committee then would have to decide whether to proceed with a suspension of the rules, according to McCullough.
Hansen and Heinert said they’d never heard of that. Hunhoff said it has happened.
Department officials originally wanted part of the new rules to say, “Neither medication may be dispensed in any manner contrary to this section.”
But the South Dakota State Medical Association said that wording went too far.
The SDSMA, in a November 19, 2021, letter to state Health Secretary Kim Malsam-Rysdon, said mifepristone may be used to initiate a medical abortion but “is more commonly used for medical management of miscarriage.”
Approximately 10% of clinically recognized pregnancies and an estimated 20-25% of all pregnancies result in miscarriage, according to the letter.
The association also stated that misoprostol is used to prevent stomach ulcers in patients, unrelated to its uses regarding miscarriage or abortion.
The association’s attorney, Timothy Engel of Pierre, suggested that the proposed wording be changed to say, “Neither medication may be dispensed for the purpose of inducing a medical abortion in any manner contrary to this section.”
The department also received a letter of opposition from the South Dakota section of the American College of Obstetricians and Gynecologists.
Department officials changed the wording.