Bill Banning Abortion Of Down Syndrome Fetuses Reaches Noem’s Desk

Mar 10, 2021

A bill that bans abortion for fetuses with Down syndrome has reached the governor’s desk with little opposition.  It further restricts a woman’s access to a legal abortion in South Dakota.

At the start of this legislative session, Governor Kristi Noem outlined her priorities in the State of the State address. One creates a new distinction to the state’s strict abortion laws. It makes abortion of a fetus with Down syndrome a felony. 

As the proposal worked its way through the legislative process, Tammy Fite sat in front of the House State Affairs committee. She and her 17-year-old Cody Fite came to testify in favor of Governor Kristi Noem’s proposal. Cody has Down syndrome. The Fite’s have another daughter with special needs.

“We looked at what might have been pros and cons and we chose life to give them, and life abundantly,” Tammy says.

The Fite family is from Platte. They adopted Cody knowing he had Down syndrome. Tammy Fite says abortion should not be an option for a fetus with such a diagnosis. 

“We are one family that chose to adopt a child with Down syndrome,” Fite says. “We are not the only ones.”

It’s not clear how many abortions are performed because of a Down syndrome diagnosis. Governor Kristi Noem wants to know.

“We don’t know what’s happening here in South Dakota,” Noem says. “We do know we do have babies that are born with Down syndrome. We don’t know how many are being aborted specifically because they are being diagnosed Down syndrome. What this is saying is here in South Dakota every single life has value.”

The bill has sailed through the state legislature, with no votes against it.

One Republican lawmaker says the bill doesn’t go far enough. Representative David Anderson says mothers should be criminalized for aborting a fetus with Down syndrome.

“I think it’s time we have a further conversation,” Anderson says. “There cannot be one innocent party and one guilty party. I’m dead serious about that. I think we all need to take responsibility for our actions, including the mother.”

South Dakota bans abortions after 20 weeks. 

The Mayo Clinic says first trimester screenings that could detect Down syndrome occur around 11 to 14 weeks. Those screenings have an 85 percent accuracy rate.

The Planned Parenthood facility in Sioux Falls is the only abortion provider in the state. Kristin Hayward works for Planned Parenthood of the Dakotas and Minnesota. She says abortions in the state are provided up until 13 and a half weeks. Hayward says most testing isn’t done until past that point. 

“Whether it’s a ban or a limitation or the 72-hour waiting period or anything like that is just not trusting the women of South Dakota to make their own medical decisions,” Hayward says.

The state legislature rejected a similar bill seven years ago.

Elizabeth Nash is with the Guttmacher Institute, a public policy organization that focuses on sexual and reproductive rights in the US.

In a written statement, Nash says Governor Noem’s bill is part of a strategy to create so many restrictions that abortion is nearly impossible to access. Nash says bans like these are designed to prevent women from getting a legal abortion.

The Eighth Circuit Court of the appeals has upheld an injunction on a similar bill that passed in Arkansas. The ruling says pre-viability abortion bans are not constitutional. It says laws like this stand in the way of a pregnant woman’s ability to exercise her right to terminate a pregnancy before viability.

Democratic Representative Erin Healy says the governor and legislature should focus on disability rights to ensure those with Down syndrome and other disabilities have what they need to succeed in life.

“We’ve had this discussion so many times, but I know that community service providers really need more money in terms of funds for employees,” Healey says. “I would encourage us to focus on other ways that we can really help that community out.”

The president of an advocacy group for families agrees. Brandon Tilus is the president of the board of directors for New Directions Down Syndrome. 

The organization represents about 2,000 families in the tri-state region with connections to Down syndrome. Tilus says the organization does not have a position on the bill but was surprised by it.

“That the governor would move forward with this type of legislation and that as an organization that has a deep tie to this issue, it isn’t something that we were contacted about or involved in,” Tilus says. “But we would like to have been.”

Tilus says life expectancy for people with Down syndrome has doubled in the last few decades. Echoing some of Representative Healy’s sentiments, Tilus says more support is essential.

“I’m not sure that the government apparatuses to help assist with that dramatically increased scope of age, capabilities, medical needs, et cetera has been able to keep pace with the medicine and science behind it,” Tilus says.

That’s why New Directions provides families with information and resources on what to expect when having a child with Down Syndrome. Tilus says bringing families together for more support is crucial.

Governor Kristi Noem is expected to have a signing ceremony for the legislation.