Federal Judge Hears Challenge to new South Dakota Abortion law

By Dave Andrusko

Federal Judge Karen Schreier yesterday heard competing interpretations of whether South Dakota’s new abortion law imposes an “undue burden” as part of Planned Parenthood’s attempt to block the law from going into effect this Friday while it challenges H.B. 1217 in court. Enacted in March, the law requires a three-day waiting period after a woman meets with an abortionist. Women would consult with a pregnancy help center in the interim.

Both Mimi Liu, representing Planned Parenthood, and John Guhin, arguing on behalf of the South Dakota attorney general’s office, focused on the 1992 Planned Parenthood v. Casey decision in which the Supreme Court concluded that there was room for additional abortion regulations so long as they did not constitute an “undue burden” on a woman’s right to abort.

Liu argued that with only one abortion clinic in the state with one part-time abortionist, it meant that the three-day waiting period “realistically amounts to a one-week waiting period,” according to reporter John Hult of the Argus Leader newspaper. Liu maintained that for women living in the western side of the state, those two trips amount to an undue burden.

Guhin countered that nothing in Casey “clearly defines what is or is not a ‘substantial burden,’ and he said South Dakota’s law doesn’t stop women from getting an abortion,” Hult wrote. “Casey did not set the outer limits for abortion regulation,” Guhin said, adding, “The laws on abortion are developing … states are laboratories of democracy.”

Liu and Patty Devaney, arguing for the state, clashed over what the counseling requirement entailed. According to the Argus Leader, Devaney told the court that “legislators heard from women who felt like they weren’t given an opportunity to tell their story to abortion providers.”

“These women were desperately seeking an ear to listen,” Devaney said.

Liu argued that requiring all women to visit a pregnancy help center, including those who had already made up their mind, “constitutes a violation of the right to privacy and informational free speech–the right not to speak,” Hult reported.

Pointing to the language of the law, Devaney countered that “women simply can ignore questions from the counselors once they make their mandated visit.”

Devaney said, “(The law) does allow for questions–that’s the interview process–but there’s nothing in the law that mandates she tells them anything.”

Having taken the matter under advisement, Judge Schreier will issue a written ruling at a later date.

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