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ACLU and Planned Parenthood File Lawsuit Challenging South Dakota's Outrageous Abortion Law

Andrew Beck,
Senior Staff Attorney, Reproductive Freedom Project,
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May 27, 2011

Today, the ACLU and Planned Parenthood filed a lawsuit in South Dakota challenging one of the most restrictive—and downright offensive—abortion laws we’ve ever seen. We’ve blogged about this law before.

If it were to take effect, the law would require women to wait an unprecedented 72 hours between the first counseling session with the doctor and the abortion. It would also compel doctors to tell the woman about any possible risk factor that has been published in any medical or psychological journal since 1972, including supposed “risks” that have been roundly rejected by mainstream medicine. And, shockingly, the law would require a woman seeking an abortion to visit a “crisis pregnancy center” or “CPC,” and discuss the most intimate details of her life with an antiabortion counselor before she could obtain an abortion. CPCs are private entities designed to prevent women from having abortions, and the federal government has documented the fact that many CPCs provide false and misleading information to women in order to prevent them from having abortions.

Each of these restrictions is extreme and beyond the pale; collectively, they represent an outrageous assault on women seeking to exercise their fundamental right to access abortion care. The mandatory 72-hour delay is, by leaps and bounds, the longest waiting period any state has tried to impose on a woman seeking an abortion. In South Dakota, where many women would have to travel hundreds of miles to reach the state’s one abortion provider in Sioux Falls, the burden of making two separate trips, or of staying for three days in Sioux Falls, is onerous in the extreme. No court has ever suggested that a state can compel a woman to wait 72 hours before she can obtain an abortion.

And as for the law’s requirement that physicians tell women about any risk factor published in a medical or psychological journal since 1972, a nearly identical Nebraska law was recently struck down as unconstitutionally violating the right to abortion. The fact that South Dakota enacted such a patently unconstitutional requirement speaks volumes about the intentions behind the law.

Finally, the law’s requirement that a woman visit a CPC before she can obtain an abortion is a transparent effort to shame, humiliate, and misinform women seeking abortion care. South Dakota’s law not only forces women to visit these infamous entities, but also forces a woman to speak about the most private, deeply personal aspects of her life with an antiabortion “counselor,” who need not have any education, expertise, or qualifications, apart from being hostile to the woman’s decision to seek an abortion. And what happens if a CPC deliberately provides a woman with false information in order to prevent her from having an abortion? Nothing. The law is vague in some areas, but on this point it’s crystal clear: “[n]othing in [the] Act may be construed to impose any duties or liability upon a [CPC].”

These outrageous requirements cannot stand. The lawsuit we filed today is aimed at making sure that no woman in South Dakota is forced to endure such obstacles and humiliation in order to exercise her fundamental right to obtain an abortion.

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