Governor Kristi Noem continues to use executive orders to grab headlines and boost her Presidential campaign rather than make any real changes in South Dakota policy and practice. But this time she commingles grandstanding with medical malpractice.
Yesterday our part-time Governor broke out her fancy certificate-maker to make it look like she’s banning telemedicine abortions in South Dakota when really all she’s doing is telling her Department of Health “to begin emergency rulemaking” to make it really hard to get abortion-inducing drugs.
KELO-TV’s Karen Sherman and Bob Mercer are quick to point out that South Dakota law already requires abortion drugs be administered in person and that Governor Noem’s office knows this:
State law 34-23A-56 requires physicians physically and personally meet with the pregnant mother before an abortion; Noem’s communications director Ian Fury acknowledges that.
“Second: Our state informed consent laws already contemplate that abortion is performed in person only. See SDCL § 34-23A-10.1(1),” Fury wrote in an emailed response to questions on the executive order. “That this statute requires the abortion drugs to be administered in person is confirmed by Administrative Rule of South Dakota ARSD 44:67:04:12, which provides that, ‘To meet the requirements of § 34-23A-10.1(1), the physician shall use the informed consent form provided in Appendix A.’ That Appendix A form provides that the RU-485 drugs must be administerred at the doctor’s office” [Karen Sherman and Bob Mercer, “Noem Uses Executive Order to Prevent Telemedicine Abortions,” KELO-TV, 2021.09.07].
Conservative principles tell us that we should issue only the bare minimum of government directives necessary to achieve our goals. Duplicative government directives waste time and money and increase the risk of unintended consequences. By directing her Department of Health to rush-write rules that are not necessary, Governor Noem belies her claim to love conservative principles, wastes time and money, and creates the distinct possibility that DOH will slip and write rules the complicate or even contravene existing law.
The only way that Governor Noem can contend that the abortion-drug rules she has ordered from DOH is if she confesses that she didn’t pay attention when her office wrote 2021 Senate Bill 96, which expanded the use of telemedicine in South Dakota. That bill-now-law adds telephone, email, text, mail, and fax (really? come on, people: why are you faxing anything anymore?) to acceptable telehealth channels and allows any health care professional to use telemedicine as long as the professional is using “technology sufficient to evaluate or diagnose and appropriately treat a patient for the condition as presented in accordance with the applicable standard of care.” That language does not strike the clause Sherman and Mercer cite in SDCL 34-23A-56 requiring that a physician performing a “surgical or medical abortion” must “physically and personally” meet with, consult with, and perform an assessment of the medical and personal circumstances of the patient. Either Governor Noem thinks the bill she wrote and signed accidentally overrode that statute, which signals inattention to her job, or she’s issuing another redundant, feckless order.
Yesterday’s anti-telemedicine order underscores Noem’s absence of consistent governing principles. “…[W]e will build on these technological advancements and continue to find ways to remove government red tape in health care,” said Governor Noem upon signing SB 96 on March 9. But as is the case with medical marijuana, Governor Noem quickly abandons her embrace of telemedicine and whips out her red-tape dispenser when people seek health care that she doesn’t want them to have.
Governor Noem further misuses her executive “order” to express her passive voice anticipation that the Legislature will write her impending redundant rules into law:
During the 2022 legislative session, it is anticipated that the Legislative Branch and Executive Branch will cooperate on legislation that will make permanent these and other protocols… [Gov. Kristi Noem, Executive Order 2021-12, 2021.09.07].
Here Governor Noem falls into her chronic pattern of misusing executive orders as impotent political statements. A Governor saying that “it is anticipated” that the Legislature will do something is at most a passive political threat; the Governor cannot order the Legislature to do anything.
Most egregiously, Governor Noem abuses her executive authority by writing into her order lies about medical science. Noem justifies her order with this claim about ectopic pregnancies:
A woman is 30% more likely to die from an ectopic pregnancy while undergoing an abortion than if she had an ectopic pregnancy but had not sought an abortion [Noem, EO 2021-12, 2021.09.07].
First, a medical intervention to end an ectopic pregnancy is not an abortion:
Ectopic pregnancy treatment is not the same as abortion. The medical definition of “abortion” is removal of an embryo and placenta from the uterus. This includes termination of unwanted pregnancy as well as otherwise normal pregnancy in which the fetus’ or mother’s life is in danger. Note the phrase “from the uterus” – the only place an embryo can develop into a baby. Logically, treatment cannot be generalized as “abortion,” particularly because many women with ectopic pregnancies planned to conceive and wanted to carry their pregnancies to term [Dr. Patricia Santiago-Munoz, “The Truth About Ectopic Pregnancy Care,” UT Southwestern Medical Center, 2019.10.22].
Anti-abortion doctors back that medical distinction with a moral argument that intervening to end an ectopic pregnancy is preferable to letting the pregnant woman miscarry and risk death:
Continuation of such a pregnancy cannot result in the survival of a baby and entails a very substantial risk of maternal death or disability. Hence treatment is commenced to end the pregnancy surgically or medically. In certain cases, an additional benefit of early treatment may be preservation of fertility potential. This scenario is somewhat analogous to the case of a woman who develops an intrauterine infection with an unborn child that is too early to survive outside the womb. There is no chance for survival of the child, either inside or outside the womb, but there is a very real, imminent danger of death or disability for the mother. In these cases delivery is effected to preserve the life of the mother. Regrettably, in each of these clinical situations the child cannot be saved. In either case, the intent for the pro-life physician is not to kill the unborn child, but to preserve the life of the mother in a situation where the life of the child cannot be saved by current medical technology. For these reasons the American Association of Pro-Life Obstetricians recognizes the unavoidable loss of human life that occurs in an ectopic pregnancy, but does not consider treatment of ectopic pregnancy by standard surgical or medical procedures to be the moral equivalent of elective abortion, or to be the wrongful taking of human life [American Association of Pro-Life Obstetricians, “What Is AAAPLOG’s Position on Treatment of Ectopic Pregnancy?” July 2010].
In addition to misusing medical terminology, Noem proceeds to lie about the risk of death from ectopic pregnancy. Noem’s order asserts without cited evidence that “A woman is 30% more likely to die from an ectopic pregnancy while undergoing an abortion than if she had an ectopic pregnancy but had not sought an abortion.” That claim promotes medical malpractice:
Experts say failing to treat an ectopic pregnancy can put patients at serious risk. “It is really malpractice to watch a patient who is at risk for a tubal rupture from an ectopic pregnancy” without offering termination, Dr. Daniel Grossman, a professor of obstetrics, gynecology, and reproductive services at the University of California, San Francisco, told Vox. “There’s a real risk of death” [Anna North, “This Life-Threatening Pregnancy Complication Is the Next Frontier in the Abortion Debate,” Vox, 2019.09.11].
A columnist in The Federalist, which used to be one of Noem’s favorite hard-right rags until even those conservatives got fed up with her malarkey, made an argument like Noem’s that women with ectopic pregnancies should just wait them out instead of seeking treatment. Within two weeks, she had read the science, retracted her statement, and apologized for endangering women:
The primary danger in ectopic cases is that a rupture can lead to the mother bleeding out. A mother “can die within minutes” this way, Harrison told me. In another study cited in the paper, one-quarter of women who underwent surgery within 24 hours of detecting the ectopic pregnancy had a ruptured tube already, meaning they were in imminent danger.
The paper states, “In order to avoid subjecting women to catastrophic hemorrhage, the treatment of choice when encountering an ectopic pregnancy in a clinical setting has been surgery to remove the fetus and placenta plus or minus the part or whole of the organ to which the placenta is attached” [Georgi Boorman, “I Was Wrong: Sometimes It’s Necessary to Remove Ectopic Babies to Save Their Mother’s Life,” The Federalist, 2019.09.19].
Ectopic pregnancies are “the leading cause of first-trimester maternal pregnancy-related mortality and account for 10% of maternal pregnancy-related deaths.” Making it harder for women to get treatment for ectopic pregnancies increases the risk that women will die from ectopic pregnancies. Lying about the risks of treatment for ectopic treatment, like lying about masks and their ability to stop coronavirus, also increases the risk that more South Dakotans will die from preventable medical conditions.
Never mind tramping over facts, law, and effective governance; Governor Kristi Noem appears determined to march to the White House on the corpses of her constituents.