A federal judge is temporarily halting new medication abortion restrictions from Gov. Kristi Noem, saying they likely violate the right to access abortion without an "undue burden."
"At this stage, Planned Parenthood has shown that the personal, financial, and logistical obstacles involved in traveling to the clinic for three separate appointments at regulated time intervals amounts to a substantial obstacle for a person seeking a medication abortion," Judge Karen Schreier wrote in her temporary restraining order against the rules.
Schreier, who is based in Sioux Falls, made her order on Wednesday, the day before the abortion rules were set to go into effect.
Planned Parenthood — whose Sioux Falls office is the only abortion provider in the state — and the American Civil Liberties Union of South Dakota filed their lawsuit after Noem signed an executive order and the Department of Health created rules addressing medication abortions.
Troy Heinert, the leader of the Democratic Party in the Senate and a member of the Rules Review Committee, voted against the rules.
"This is just another hurdle, another barrier for women to access healthcare as they see fit with their doctor. So I'm glad the judge shot it down," he said Thursday during a weekly legislative news conference.
Noem said during he press event that she will continue to defend the rules and her attempt to codify them into law.
She discussed the part of the rules that ban South Dakota doctors from prescribing medication abortion pills, which the plaintiffs say is already de facto illegal. But the lawsuit is about a different section: Extended appointment and wait-time requirements for in-person medication abortions.
Schreier wrote that the public has an interest in the enforcement of state administrative rules. But she said the public has an even greater interest in the enforcement of the Constitution.
The Supreme Court ruled in Roe v. Wade and Planned Parenthood v. Casey that access to abortion before viability and without an undue burden is a constitutional right under the right to privacy principle within the Due Process Clause.
Some experts expect the current justices to overturn those cases or severely limit abortion rights.
Right now, South Dakotans must begin the medication abortion process 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 rules 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 plaintiffs and the South Dakota State Medical Association say adding an appointment and extra wait time is medically unnecessary and a health risk due to an increased chance of hemorrhage. The plaintiffs also say the rules are disproportionately harmful to low-income and rural patients.
Noem said the rules are necessary to protect "unborn children" and women's health.
She's introduced a bill to codify her medication abortion rules and has a second bill modeled after Texas legislation that would ban abortion at six weeks, before some people know they are pregnant.
Legal precedents say states can't ban abortion until viability— when a fetus or baby can survive outside the womb — which is typically 22 to 24 weeks.
Noem's proposed ban would be enforced not through criminal courts but by private citizens filing lawsuits against abortion providers, with the bill allowing them to collect at least $10,000 if they win.
Noem's new rules will remain off the books as the plaintiffs and the state of South Dakota submit motions and arguments. Schreier will then make a final decision on whether the rules are constitutional or not.
