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AG Jackley affirms state law on abortion pill remains following SCOTUS decision

Package containing Mifepristone and Misoprostol.
Package containing Mifepristone and Misoprostol.

South Dakota Attorney General Marty Jackley said the recent US Supreme Court decision does not affect state law restricting access to a widely used abortion pill.

The nation’s high court rejected the case on procedural grounds.

State law prohibits a person from administering or prescribing any medicine, drug or substance with the intent to procure an abortion. The charge is a class six felony.

It’s part of the states near total abortion ban, which went into effect following the Dobb’s decision that overturned Roe v. Wade.

The law remains the same after the US Supreme court tossed out a challenge to the FDA’s approval of mifepristone. The court said the group that brought the challenge did not have grounds to sue the agency.

Attorney General Jackley joined 21 other attorneys general in supporting the group that brought the case. He said he joined the court case because it was the best option to defend the state’s abortion law.

Jackley said he expects other cases about abortion medication to reach the nation’s top court.

“Washington, and particularly a non-elected FDA, shouldn’t be making these decisions," Jackley said. "An elected state legislature, an elected governor, should make those determinations.”

South Dakota voters will weigh in on whether they want abortion protections enshrined in the state constitution. Constitutional Amendment G would allow for abortion rights in the first two trimesters of pregnancy, as well as some in the third.

A handful of states have passed shield laws that protect physicians who provide abortion medication regardless of where the patient is located.

Nancy Turbak is with a coalition that’s backing the amendment. She said South Dakota’s abortion law has put women in a desperate position to seek health care out-of-state.

“What today’s ruling says is, basically, there’s no federal impediment to that,” Turbak said. “The original ruling by the Texas district court judge is of no effect whatsoever.”

Abortion rights groups have celebrated the decision. That includes South Dakota ACLU communications director Janna Farley.

“This is certainly good news. It’s great news that we got this ruling from the Supreme Court," Farley said. "But - you always have a but – we just know that the attacks on our access to reproductive health care are still going to continue.”

While South Dakota law bans the use of medication to induce an abortion, state law also says any female who undergoes an unlawful abortion may not be held criminally liable.

Of the 137 abortions that took place in South Dakota in 2022, about 36 percent of them were induced by medication, according to a Department of Health report.

Lee Strubinger is SDPB’s Rapid City-based news and political reporter. A former reporter for Fort Lupton Press (CO) and Colorado Public Radio, Lee holds a master’s in public affairs reporting from the University of Illinois-Springfield.