Noem uses executive order to prevent telemedicine abortions

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South Dakota Gov. Kristi Noem speaks during the Family Leadership Summit, Friday, July 16, 2021, in Des Moines, Iowa. (AP Photo/Charlie Neibergall)

SIOUX FALLS, S.D. (KELO) — Governor Kristi Noem has issued an executive order directing the Department of Health to create rules preventing telemedicine abortions in South Dakota, though there appears to be a state law already that covers that area.

The order declares that abortion drugs may only be prescribed or dispensed by a physician who is licensed in South Dakota after an in-person examination. It also blocks abortion-inducing drugs from being provided via courier, delivery, telemedicine, or mail service.

State law 34-23A-56 requires physicians physically and personally meet with the pregnant mother before an abortion; Noem’s communications director Ian Fury acknowledges that.

“Second: Our state informed consent laws already contemplate that abortion is performed in person only. See SDCL § 34-23A-10.1(1),” Fury wrote in an emailed response to questions on the executive order. “That this statute requires the abortion drugs to be administered in person is confirmed by Administrative Rule of South Dakota ARSD 44:67:04:12, which provides that, ‘To meet the requirements of § 34-23A-10.1(1), the physician shall use the informed consent form provided in Appendix A.’ That Appendix A form provides that the RU-485 drugs must be administerred at the doctor’s office.”

State law currently says, “An abortion may be performed by a physician during the first twelve weeks of pregnancy. The abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician during the first twelve weeks of pregnancy.” After that, through 22 weeks pregnancy, state law says an abortion can be performed only in specific settings such as a licensed hospital or in the physician’s licensed medical clinic or office.

The Republican governor’s communications director said the order is a response to President Joe Biden, a Democrat.

“Until the Biden administration changed the rules of how abortion drugs are administered ‘because of COVID,’ the REMS (Risk Evaluation and Mitigation Strategy) FDA protocol prohibited abortion by mail/telemedicine RU-486 (mifepristone/misoprostol),” Ian Fury wrote in an email to KELOLAND News.

“The Biden administration has signaled an intent to do away with that protocol permanently, as the EO (executive order) explains. Thus, the EO is stepping into the breach to preserve what was the status quo – no chemical abortion by mail/telemedicine,” he continued.

Noem’s order is intended to apply on an emergency basis. The Legislature’s Executive Board last week received an issue memorandum that said the state constitution doesn’t mention a governor’s executive orders, except for reorganization of her or his administration. The memo further notes that state laws don’t limit the duration of an executive order, nor say how broad or narrow an executive order can be.

Kristin Hayward, manager of advocacy and development in South Dakota for Planned Parenthood Minnesota, North Dakota, South Dakota Action Fund, which supports abortion rights, responded to Noem’s order Tuesday.  

“Anti-abortion politicians will stop at nothing to restrict access to abortion in South Dakota,” Hayward said. “Governor Noem will do whatever she can to control South Dakotans’ reproductive health care. We know most South Dakotans support the right to safe, legal abortion, but Noem is following a vocal minority that is attacking abortion, contraception, and comprehensive sex education in this country. Planned Parenthood will always stand up for patients and communities. That’s why those of us who support reproductive freedom must speak up now before it’s too late—and encourage our friends, families, and communities to do the same.”

Governor Noem says she plans to work with lawmakers on legislation that makes these and other protocols permanent.

This comes five days after Noem said she was having her office’s unborn-child advocate review the state’s abortion laws. That was in response to the new Texas law that outlaws most abortions thereafter about six weeks.

In 2006 and 2008, South Dakota voters rejected ballot measures that would have prohibited most abortions.

But that may not deter the governor, who is currently challenging the decision by South Dakota voters last November to legalize marijuana for people age 21 and older. Amendment A drew 54% support. The state Supreme Court is considering the case.

In the new order Tuesday, Noem said, “South Dakotans overwhelmingly support life and voted in 2020 to elect a majority of members of the state Legislature who support pro-life issues.”

Copyright 2021 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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