On the same day that chief counsel Mark Miller told House State Affairs that Governor Kristi Noem would not ask for a bill that is unconstitutional, Judge Karen Schreier blocked another Noem action that violates the Constitution.
Planned Parenthood and the ACLU are suing the state to prevent implementation a newly adopted rule prohibiting patients from taking abortion-inducing mifepristone and its follow-up drug misoprostol at home. Women would have to go the doctor’s office to take each medication under the watchful proxy eye of the state. Combined with South Dakota’s draconian 72-plus-hour abortion waiting period, this rule would require women seeking medication abortions, which made up 40% of the 190 abortions provided by Planned Parenthood in 2021, to visit the clinic four times over a three-week period, just to take pills that the FDA and medical science say they could safely take at home. Planned Parenthood argues that requirement violates medical standards of care and the Constitution:
As the lawsuit explains, the rule violates the standard of care that has been in place for more than 20 years and the recommendations of leading medical organizations, including the American College of Obstetricians and Gynecologists. South Dakota will be the only state to require three visits for a medication abortion, making it one of the strictest regulations on medication abortion in the country. If allowed to take effect, the rule will violate the due process and the 14th amendment’s equal protection rights of our plaintiffs and their patients.
South Dakota already forces patients to wait an unnecessary 72 hours before an abortion, not including weekends and holidays, mandates state-biased counseling, and bans medication abortion via telehealth which has been proven safe and effective. Medication abortion is extremely safe and common and a standard method of terminating an early pregnancy. It is preferred by some patients because it allows patients to have more control over their abortion and more privacy. Planned Parenthood has been the only abortion provider in South Dakota for the past 20 years.
Abortion restrictions disproportionately hurt those who already have the hardest time accessing quality health care — people with low-income, Black, Latino and Indigenous communities, people in rural communities, and patients suffering from intimate partner violence. An additional visit, on top of the already laborious two visits required by law, would delay care and potentially prevent some patients from receiving the care they need altogether [ACLU-SD, press release, 2022.01.21].
That argument is sufficiently solid for Judge Schreier to issue this temporary restraining order against the rule. Judge Schreier agreed there’s no science back the state’s claimed interest; citing the plaintiffs’ complaint, the court noted that medication abortion “is safer and medically indicated” for some patients and that misoprostol poses higher risk of bleeding for patients with other conditions whom Noem’s rule would not drag to the hospital for supervised pill-taking. The court further agreed that the economic burdens of this legally mandated but medically unnecessary travel “could prevent a patient from completing the required sequence of clinic appointments for a medication abortion.” The extra trip also puts women who are trying to keep their abortion confidential at greater risk of being found out by an abusive partner or family member “and thus risks the patient’s safety and well-being in an abusive domestic environment.”
Noem says she is protecting women with her abortion restrictions, but Judge Schreier’s restraining order indicates that women need protection from Noem.
Judge Schreier said allowing the rule to go into effect while the case is heard would cause irreparable harm to the women Planned Parenthood serves by infringing on the constitutional right to abortion and that that harm outweighs any harm the state may suffer from delaying the imposition of this rule:
There is a public interest in protecting the right to choose an abortion. And the public has a clear interest in ensuring the supremacy of the United States Constitution. While the public also has an interest in the enforcement of state administrative rules, that interest is secondary to the public interest expressed above. Thus, the court finds that this factor weighs in favor of granting the temporary restraining order [Judge Karen Schreier, U.S. District Court of South Dakota, Temporary Restraining Order, Planned Parenthood MN-ND-SD and Sarah Traxler, M.D., vs. Kristi Noem, Joan Adam, and Philip Meyer, 2022.01.26].
Judge Schreier will hear evidence in this case on February 1 in Sioux Falls. She set her restraining order to expire on February 9.
Governor Noem is asking the Legislature to consider a bill promoting her medical abortion obstacle from administrative rule to law. Once again, according to the court, Noem is asking the Legislature for a bill that is unconstitutional.