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Judge hears arguments in Planned Parenthood v. Noem

Sioux Falls Federal Courthouse
Jackie Hendry
The federal courthouse in Sioux Falls.

A federal judge will decide the fate of the Noem administration’s new rules on medication abortions within the next week. Those rules require a total of four separate appointments for a person seeking an abortion by pill.

The judge recently granted a temporary pause on the Noem administration’s rules based on arguments that they likely impose an undue burden on a person’s right to seek an abortion in the state. Those arguments were brought by Planned Parenthood and the ACLU of South Dakota in a lawsuit filed last week.

State law already requires a person seeking a medication abortion to attend two appointments: one for informed consent, and a second appointment at least three days later to receive the medication.

The Noem administration’s new rules require a third visit to receive a second round of medication typically taken at home, and a fourth visit to confirm the pregnancy has ended.

The temporary restraining order notes that the Sioux Falls Planned Parenthood clinic is the only abortion provider in South Dakota, and that 40% of abortions last year happened through medication. On Tuesday, Planned Parenthood attorney Diana Salgado argued requiring additional appointments puts additional strain on patients who may need to travel hundreds of miles to Sioux Falls for the required visits. She said it could also increase wait times for other patients.

Jonathan Mitchell—a Texas-based attorney and former clerk for the late Supreme Court Justice Antonin Scalia—argued on behalf of the state. He says Planned Parenthood needs to provide further evidence that a substantial fraction of patients could face an undue burden, rather than rely on hypotheticals. He also says patients concerned about the additional appointments could seek a surgical abortion instead.

Because the state filed its brief less than 24 hours before the hearing, the plaintiffs have until Thursday to file a response. The judge said she will provide her opinion before the temporary restraining order expires on Feb. 9.

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