Gov. Kristi Noem hopes the Supreme Court will overturn Roe v. Wade but has introduced bills to further restrict abortion in the meantime.
One of the bills would let South Dakotans earn at least $10,000 if they successfully sue doctors who provide abortions after six weeks of pregnancy.
“I look forward to the day when all unborn lives are protected," Noem said at her State of the State address. "The Supreme Court has a historic opportunity to make that a reality. As soon as Roe v. Wade is overturned, our state laws are ready to protect every unborn South Dakota child. But until then, we can take steps to protect South Dakota children, today.”
South Dakota is one of 12 states with a "trigger law" that would make abortion illegal as soon as Roe v. Wade is overturned. The South Dakota law has an exception when the mother's life is at risk.
The Supreme Court could reverse or weaken the 1973 decision when it rules on a Mississippi law that bans abortions after 15 weeks.
The law challenges Supreme Court precedent that says states can only ban abortion after viability — when a fetus or baby can survive outside the womb — which is typically 22 to 24 weeks.
South Dakota has one abortion provider, Planned Parenthood in Sioux Falls.
"Heartbeat Bill"
Noem's most restrictive bill is modeled after a Texas one that bans abortions after six weeks — before some people know they are pregnant.
"Science tells us that an unborn child’s heartbeat starts six weeks after conception. And any abortion after that point stops that heartbeat — stops that life — stops that gift from God," Noem said. "I am bringing legislation to ban all abortions once a heartbeat can be detected."
Doctors say the noise heard around six weeks may not be an actual heartbeat but could be electrical cardiac activity in the location that the heart will develop.
A lawyer who helped draft the Texas bill created an enforcement mechanism that makes it difficult for judges to rule on the law, according to Adam Liptak, a former attorney who covers the Supreme Court for the New York Times.
The ban would be enforced by private citizens filing lawsuits, not the state pressing criminal charges.
Any South Dakotan could sue a doctor who performs an abortion after six weeks. They could also sue those who aid and abet the procedure by taking actions such as helping pay for an abortion or driving someone to an appointment.
The defendant would have to pay at least $10,000 to the plaintiff if a judge agrees the abortion was illegal.
Planned Parenthood, the Biden Administration and other opponents say these kinds of bills provide a financial incentive to sue and turn citizens into bounty hunters.
Opponents in Texas have had trouble challenging the law. They're filing lawsuits against different people and entities after the Supreme Court said they sued the wrong people.
Dissenting justices said they should be able to rule on the law no matter who is sued.
Texans more than six weeks pregnant are travelling to other states for abortions after in-state facilities complied with the law to avoid being sued.
Medication abortions
A second bill from Noem would ban telemedicine abortion and increase the number of appointments and time required to obtain a medication abortion at Planned Parenthood.
Medication abortions involve taking two pills to end pregnancies up to 10 weeks. About 40% of South Dakotans and Americans who have abortions opt for this procedure over surgical abortions, which are more expensive and invasive.
A telemedicine appointment is when a doctor mails the pills to a patient after meeting with them online. This became possible after the Food and Drug Administration recently allowed the first pill to be sent by mail.
The telemedicine ban would have no impact for Planned Parenthood since South Dakota already requires patients to have in-person consultations.
The second part of the bill would have an impact.
Right now, medication abortion patients must begin with a consultation before returning three days later to take the first pill. They are also given the second pill, which they take one to two days later at home. They return within a week or two to make sure the abortion is complete.
Noem's bill would make patients pick up and take the second pill at a separate appointment one to three days after taking the first pill. They would then return two weeks later for the checkup appointment.
The bill would therefore turn medication abortions into a four-appointment, three-week procedure.
"The language that they’re using is that this is a dangerous medication which is completely untrue, that it shouldn’t just be given to patients for them to take at home — which has been the FDA’s recommendation," said Kristin Hayward, manager of advocacy for the Planned Parenthood in Sioux Falls.
"So when the government of South Dakota is now saying, 'Well, no, that’s not necessarily the case and we need to protect pregnant people,' it’s just inaccurate and it’s going against medical advice," she added.
Planned Parenthood, the American Civil Liberties Union and the South Dakota State Medical Association say there is no medical reason to make people take the second pill in person. They say the rule can also be dangerous, that waiting three days — or longer in the case of a missed appointment — to take the pill can cause hemorrhaging.
The bill would also disproportionately impact low-income and rural South Dakotans who would need to drive long distances and spend money on four appointments, Planned Parenthood and the ACLU argue in their lawsuit.
Planned Parenthood says it would have to stop providing medication abortions if the law passes. The organization says it doesn't have the staffing — it relies on three doctors who travel from Minnesota — for the increase in appointments.
To discuss the bills and lawsuit further, reporter Arielle Zionts joined SDPB's daily public-affairs show, In the Moment.
