Bid to 'Court Proof' S.D. Abortion Ban May Be in Vain

The South Dakota abortion ban was crafted with court challenges in mind. But that may not materialize if the ban is derailed by popular vote in a ballot initiative.

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CHADWICK: This is DAY TO DAY from NPR News. I'm Alex Chadwick.

BRAND: And I'm Madeline Brand. Last month South Dakota passed the most restrictive abortion ban in America. It rules out all surgical abortions, except to save the life of the mother. It's supposed to take effect in July, but likely will be delayed by a statewide referendum.

CHADWICK: Much of the battle centers on one prominent non-profit group. Here's a report from NPR's Mike Pesca, just back from South Dakota.

MIKE PESCA reporting:

There's a perfect phrase to describe the building that houses the only abortion clinic in South Dakota. The phrase has been used by both the Boston Globe and the Chicago Tribune, but it's too dead-on not to invoke here. The phrase is non-descript.

There's a Planned Parenthood sign on the outside of this building, which is right across from a school and a church. In this sparsely-populated state with one abortion clinic, but zero doctors who will actually perform an abortion.

Unidentified Man: We're sitting in a room, which is, you know, one of the few rooms in this whole state where you could actually have an abortion.

Unidentified Woman (Doctor): That's true. I think...

PESCA: Inside the Sioux Falls clinic there is a doctor who won't give her name out of security concerns. She's in a rotation with three others who fly in from Minnesota to provide all of South Dakota's nearly 800 annual abortions. This is her take on the setup.

Unidentified Woman: It's a tragedy that we have to provide abortions to women in the way that we do provide them. I think that a woman should be able to get an abortion in her own community by her own physician.

PESCA: The CEO of Planned Parenthood for Minnesota, South Dakota and North Dakota, Sarah Stoesz, thinks that South Dakota was the first to pass such a restrictive abortion ban because it's conservative, small and was greatly influenced by one man.

Ms. SARAH STOESZ (CEO, Planned Parenthood for Minnesota, South Dakota and North Dakota): It takes a dedicated champion in the legislature in order to make something like this happen. So in this case we have Roger Hunt.

PESCA: State Representative Roger Hunt is the abortion ban's driving force. Hunt is more buttoned-down than many of his fellow legislators. Many of them are farmers or teachers who exude a folksy charm. He's a lawyer, he's knows abortion law, and he does not hold Planned Parenthood in high regard.

Representative ROGER HUNT (Republican, South Dakota): I've heard for so many years advocates like Planned Parenthood who basically have made an industry out of abortions, if you would. I mean there's big money in abortions. Millions and millions and millions of dollars just in the North Dakota/South Dakota/Minnesota abortion business on an annual basis. I've seen some of their tax returns.

PESCA: That would surprise the doctor who says she takes a financial hit by working for a non-profit abortion provider, rather than by having a private practice.

But Planned Parenthood and its affiliates, though non-profit organizations, do have net assets including the property they own in the hundreds of millions of dollars. They also have high operating expenses and in many places get much of their funding from tax dollars.

The standoff between Planned Parenthood and Hunt goes beyond the normal antipathy felt by each side on a divisive political issue. To Hunt and the two-thirds of both Houses of the legislature, which have voted for the ban, Planned Parenthood doesn't represent an opposing pro-choice viewpoint: Planned Parenthood is abortion. To ban abortions in South Dakota is to outlaw Planned Parenthood's central mission. What's more, from their perspective, if a pregnant woman's first thought is to walk into a Planned Parenthood clinic, she won't get the information they'd like her to get.

I spoke with Andrea, the manager of the clinic, who didn't want to use her last name because of security. She showed me the brochures they give to patients, including something called the Options Packet, which include information on adoptions.

When you ask them if they've thought about adoption, is that something that you have to do by law?

ANDREA: It's not something we have to do by law, but it's a part of our making sure that they have thought about all their options.

PESCA: So everyone, and that's done with everyone? Everyone who comes here for an abortion hears the word adoption, at least, or gets the question asked to them, have you thought about adoption?

ANDREA: The question comes, have you thought about all your options? I can't say that every person that does the education talks specifically about adoption.

PESCA: I mean has anyone ever said no? People are aware, I assume, that it's an option.

ANDREA: People are aware. And I think that by the time they get here, women are educated enough to know that when they come to an abortion clinic, that's what they're coming here for.

PESCA: Planned Parenthood's counseling practices were studied by a state task force convened in 2005 to consider all aspects of abortion in advance of drafting legislation. It studied DNA, fetal pain and the experiences of women after they've had abortions. When the final report was issued, the panel's pro-choice advocates walked out, because they felt that the document revealed a clear anti-abortion world view. Here's an excerpt about the Planned Parenthood clinic.

We find that Planned Parenthood fails to inform the pregnant mother in any language that her unborn child is in existence. It is impossible for a woman to give informed consent to an abortion if she does not fully understand that her child is in existence, and that she is consenting to the termination of the life of her child.

Even the South Dakota politicians who oppose the ban are often not on the same page as Planned Parenthood. Typical is Dale Hargens, a pro-life Democrat who voted against the bill because it didn't have an exception for rape and incest. He tells of a friend of his daughter's who was considering an abortion.

Mr. DALE HARGENS (Pro-Life Democrat): My daughter is very pro-life; said, Dad, what do I do? And I said, Well, you can't hold it against her. It's going to be her choice. But I said, You can be supportive and tell her no matter what you decide I'm going to be your friend, but if you choose to have this baby, we'll help raise it, and ultimately, she, on the way to the clinic, turned around, came home and had the baby, and we babysat that little boy a lot of times, and he's just a nice little guy, and I think that's how you stop abortions. You do it one at a time.

PESCA: Now, if a pro-choice advocate heard that story, they might just say exactly. You helped her make a choice that was right for her, and that's all that they ever say that they ever advocate for.

Mr. HARGENS: Well, they say that. I think, on the other hand, there are times when maybe they don't show the other side of it too. I think the other side needs to be shown more than it has by Planned Parenthood and some of those.

PESCA: On the issue of the rape and incest exception, Representative Roger Hunt says it's there in that emergency contraception is still allowed. Planned Parenthood calls Hunt a hypocrite because South Dakota abortion opponents have tried to make morning-after pills as hard to get as surgical abortions.

But Hunt also makes the argument that as tragic as rape is, an abortion after a rape compounds the injustice.

Representative ROGER HUNT (Republican, South Dakota): If somebody actually has been raped, the mother, very honestly, has a couple of remedies. One remedy, of course, is the prosecution of the individual that caused it. Another remedy is adoption of the child, etc. But you know, that unborn child has absolutely no remedy. You terminate the life of the unborn child, they have no remedy; they have no advocate, they have no one to speak out for them.

PESCA: Here in South Dakota, the perception of a rape and incest exception could be the hinge in what most think is an inevitable statewide referendum this November. David Bereit of the Anti-Abortion American Life League says that even in conservative South Dakota, his side has a tough fight ahead.

Mr. DAVID BEREIT (Anti-Abortion American Life League): I really think we're going to see a public relations battle that probably will be comparable to a New Hampshire primary or something of that magnitude. This is going to be a huge public relations struggle.

PESCA: In a state with about 800 abortions annually, even the most liberal estimates indicate that there are only about eight abortions performed each year where the pregnancy was the result of a rape. Planned Parenthood says those eight women have good reason, and it's not for anyone to say that the rest don't. Roger Hunt would say that those eight women are carrying babies, whose lives are just as valuable as all the rest.

Perhaps it's tempting to think that potential swing voters or even swing Supreme Court justices would be surprised to learn that their desire for a rape exception comes down to so few people. But Americans aren't to actuarial morality. However many women are affected, either by a statute that says you can't have an abortion or ruling that says you can, it will be too much for one side to bear.

Mike Pesca, NPR News.

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