Federal Judge Blocks Implementation of New South Dakota Abortion Law

By Dave Andrusko

Judge Karen Schreier

To no one’s surprise U.S. Judge Karen Schreier late Thursday blocked implementation of South Dakota’s new abortion law which was scheduled to go into effect Friday. Enacted in March, H.B. 1217 requires a three-day waiting period after a woman meets with an abortionist. Women would consult with a pregnancy help center in the interim.

Judge Schreier has a track record on abortion. Six years ago she issued an injunction of South Dakota’s informed consent law. In 2008  the 8th Circuit Court of Appeals voted 7-4 to overturn that decision.

“This preliminary injunction is not a surprise,” said pro-life Gov. Dennis Daugaard in a statement. “I believe everyone agrees – no matter what their stance on abortion – that it’s a laudable goal to reduce abortions by encouraging consideration of other alternatives. The three-day waiting period called for in HB1217 gives women time to reflect and make good choices.”

Schreier’s 61-page opinion closely tracked the main arguments made by Planned Parenthood of Minnesota, North Dakota and South Dakota, which brought the suit. Two were vital to the outcome. (For an in-depth review, see here.)

Representing Planned Parenthood, Mimi 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,” according to John Hult  of the Argus Leader.

Patty Devaney, arguing for the state, pointed to the language of the law and  countered that “women simply can ignore questions from the counselors once they make their mandated visit.”

Schreier sided with Liu.

“In nearly every instance where the Pregnancy Help Center Requirements are relevant, a woman who chooses to undergo an abortion will experience a high degree of degradation because she will be forced to disclose her decision to someone who is fundamentally opposed to it,” Schreier wrote.

Liu also clashed with John Guhin, arguing on behalf of the South Dakota attorney general’s office, over the question of whether the 72-hour waiting period constituted an “undue burden.” In the 1992 Planned Parenthood v. Casey decision 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.”

Schreier again sided with Liu, tracking her contention virtually sentence by sentence.

For good measure Schreier addressed another part of the law. “Nothing in the text of the statute permits physicians to use their medical judgment to avoid disclosing information that is untrue, misleading or irrelevant,” she wrote.

This was a reference to the link between having an induced abortion and a increased risk of breast cancer, which Schreier (falsely) wrote has been discredited.

Hult reported that “Attorney General Marty Jackley said his staff intends to take time to fully digest the ruling before making its next move.”

Jackley said, ”At this point, I need to fully review the decision and discuss it with the attorneys involved in the case, the governor and legislative leadership.”

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