Press "Enter" to skip to content

Judge Blocks Noem’s Restriction on Abortion Pills

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.

33 Comments

  1. larry kurtz 2022-01-27

    Thank you, Nino Scalia, for reminding us why Democrats need to control the federal bench. Even if the Oglala Lakota Oyate doesn’t build a casino at the entrance to Badlands National Park it’s time to test South Dakota’s jurisdiction over nations where cannabis is legal and for tribal medical professionals to establish clinics that dispense medications and perform abortions on these non-contiguous parcels as islands of health care that supersede state law.

  2. mike from iowa 2022-01-27

    Is there a penalty for messing with the US Mail by pissant magat pols?

  3. John Dale 2022-01-27

    That someone would pursue this as a means for “womens’ liberation” is why there will continue to be conflict in our great nation.

    It’s a root cause.

    Some people are okay mass killing little people.

    Others are not.

    So we fight.

    And one of us is *ahem* right.

  4. larry kurtz 2022-01-27

    7. Ending reproductive rights in red states is Balkanizing women’s medical care.

  5. mike from iowa 2022-01-27

    It’s a root cause. He said this because he happened to notice roots in rabbit holes. Right rabbit hole in right spot and he could’ve had some garden fresh potatoes to gnaw on.

  6. Porter Lansing 2022-01-27

    Since Abe Lincoln’s time bigots have been calling their discrimination “protection” of one group or another.
    It’s was unconstitutional bullshiet bigotry then and it’s the same when Governor Noem claims she protecting who knows who.

  7. cibvet 2022-01-27

    Just finished a short discussion with a brother-in law who actually stated he was proud of the fact that SD doesn’t have a trans problem
    because”we run them out of the state”. He is gone and not welcome here, as I can not deal with that kind of bigotry or the names he uses when
    speaking about other non-white people.

  8. M 2022-01-27

    Republicans want everyone to be the same. They claim that they are protecting a life by being against a woman’s right to choose what she does to her body for pregnancy, however, they deny many of them proper medical care and other resources to have a healthy baby from a healthy mother.

    And then a John Dale or John Doe comes along and sows his seeds from Custer to Sioux Falls and never looks back. We need more laws that MAKE EVERY father responsible for every child they sire. Fire up the paternity suit action. If we started holding the fathers responsible for every pregnancy, this higher than and mightier than attitude would change.

    When Trump said women should be punished legally for having abortions, Republican women’s groups were all over him. Is it just me or are the anti choice advocates mostly men? It was a male dominated legislature that just turned Texas vigilante. Soon, they will try to medically and legally deny women the right to birth control. Then, what’s next? What century is this?

  9. mike from iowa 2022-01-27

    Forcing women to carry to term makes sense in Michigan where deaths outnumbered births last year. Problem I see is how and when magats will .legislate all births are labeled magats and must vote that way when eligible.

  10. O 2022-01-27

    Today marks the two-year anniversary of the 38ht state ratification of the ERA. It is now part of the Constitution? (Not so fast says Trump.)

  11. David Mcfarland 2022-01-27

    OK, once and for all. Is any potentially electable Democrat (an oxymoron in SD?) going to run against this ridiculous governor? Although I no longer vote in South Dakota, I can think of several well-known Democrats who could make great governors. I suspect yet another Republican may run in the primary as there must be a couple respectable people in the GOP who could do the job.Just asking.

  12. bearcreekbat 2022-01-27

    M worries that “Soon, they will try to medically and legally deny women the right to birth control.” M is right to predict this. In Griswold v. Connecticut the SCOTUS ruled that “A right to privacy can be inferred from several amendments in the Bill of Rights, and this right prevents states from making the use of contraception by married couples illegal.”

    https://supreme.justia.com/cases/federal/us/381/479/

    The fact is that this is the same Constitutional “right of privacy” that is the foundation of the decision in Roe v. Wade. Thus if Roe is overruled it will be because conservative court members rule that the federal Constitution does not explicitly mention any “right to privacy.” In turn, without an explicit federally protected Constitutional “right or privacy” the States are free to restrict any activity not otherwise explicitly protected by the federal Constitution. Thus, outlawing birth control will again be soley within each State’s power and authority. Similarly, a State will once again have the power to require mandatory sterilization for those people (both men and women) the State deems unfit to have children (Buck v. Bell).

    Overruling the Constituional "right of privacy" from Roe and Griswald and similar cases previously relying on this “right of privacy” as a basis to prevent States from prohibiting such actions as: marrying outside one’s deemed race (Loving v. Virginia or sex (Obergefell v. Hodges ); engaging in private sexual conduct whether married or not (Lawrence v. Texas); along with a variety of other activities; would also open the door to any State deciding to prohibit women deemed undesirable (and not explicitly protected by some express language language in the federal Constitution, such as liberals, progressives, immigrants, etc.) from having children. Indeed, absent Constitutional language addressing the right to bear children the State would have full authority to require involuntary abortions for any women deemed undesirable who might become pregnant contrary to the State’s prohibition.

    In addition, logic dictates that once the State is granted power over an individual’s bodily autonomy sufficient to decide by law the contents of a woman’s body, there seems to be no explicit Constitutional impediment against a State exercising the corresponding power to remove body parts from unwilling donors to benefit recipients that the State deems more worthy than the donor.

  13. Porter Lansing 2022-01-27

    Deeply reading BCB’s above comment in chilling.
    Run, run from the reaches of South Dystopia.

  14. Cory Allen Heidelberger Post author | 2022-01-27

    David M, I don’t know the answer to that. But I remain convinced that running a viable campaign against Kristi Noem requires, among other things, being able and willing to explain to voters the consequences of having a Governor who constantly proposes unconstitutional legislation. A viable candidate will help voters recognize ignorance of and disregard for basic constitutional principles as a really bad quality in any elected official. If you can’t take your oath of office seriously and uphold the Constitution, you really don’t belong in office.

  15. Mark Anderson 2022-01-27

    Oh John Dale your virtually never right. You are a libertarian so dope is OK I guess, even though I gave it up decades ago. Why you want to take away a woman’s right whos knows. However please continue in your quest because what you will unleash will be very interesting to the Republican party. If the Supreme Court does away with Roe all bets are off in the next election.

  16. Cory Allen Heidelberger Post author | 2022-01-27

    John Dale, refer to John’s comment. Your willing to kill some real women with real constitutional rights and subordinate the autonomy of all women to a cellular abstraction. You render women servants of the state and your ideology.

  17. Cory Allen Heidelberger Post author | 2022-01-27

    cibvet, your brother-in-law epitomizes the Noem/GOP apartheidist long-game: carve out Whitopias in marginal rural regions by making any liberal individuals sufficiently uncomfortable to choose moving to freer, easier cities than sticking it out and rationalizing that they can stir some progress in their rural homelands.

  18. Cory Allen Heidelberger Post author | 2022-01-27

    BCB, I hope we don’t get to that test of privacy and bodily autonomy.

  19. O 2022-01-27

    Cory, I agree with you, but what you say, “. . .being able and willing to explain to voters the consequences of having a Governor who constantly proposes unconstitutional legislation.” is changing what the GOP expects in candidates. The GOP wants great campaigners; they do not care one whit about governance. The fact Governor Noem continues to propose unconstitutional legislation means she gets to continue to be the crusader against “the system” (and yes, the irony is not lost that she IS the system), and because those laws never stand, they never lose their campaign value in the culture war.

    Your advise falls into the Democrat policy wonk/good governance trap. As with vaccines, affordable health care, and fair wages, the GOP rank and file just aint interested.

  20. Lottie 2022-01-27

    Whats very concerning and sad, like in old days, if women decide they want or need to end a pregnancy they will. Men or no one man or gnome will stop her.

  21. Cory Allen Heidelberger Post author | 2022-01-28

    O, true: Noem’s job is to win elections; Democrats think their job is to actually govern.

    Consider BCB’s analysis of the danger to the right to privacy posed by SCOTUS. If SCOTUS destroys the constitutional right to privacy, Republicans could lose the constitutional basis for House Bill 1179, which proposes to create an “inalienable right to bodily integrity.”

  22. bearcreekbat 2022-05-11

    mfi, as I understand the court of appeals decided to defer a decision until after Dobbs is an official opinion. If Alito’s position holds up it will change the framework of the analysis of the court of appeals. Indeed, in light of SD’s trigger statute the appeal with likely become moot if Dobbs overrules Roe as all abortion efforts in SD will be turned into class 6 felonies for medical providers, mothers, and whoever else the trigger statute might suck in, except those abortions deemed necessary (unclear who gets to make this decision) to save the woman’s life.

    Meanwhile, here is some more food for thought. The federal Bill of Rights expressly limits the power of the Congress not the States. The 14th Amendment Due Process clause makes no explicit mention of the Bill of Rights, yet 20th century SCOTUS decisions have ruled that this Amendment limits State as well as federal power because the 14th Amendment Due Process Clause limiting State power implicitly incorporates the Bill of Rights.

    The incorporation doctrine is a constitutional doctrine through which the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process clause of the Fourteenth Amendment. Incorporation applies both substantively and procedurally. Prior to the doctrine’s (and the Fourteenth Amendment’s) existence, the Bill of Rights applied only to the Federal Government and to federal court cases. States and state courts could choose to adopt similar laws, but were under no obligation to do so.

    https://www.law.cornell.edu/wex/incorporation_doctrine#:~:text=The%20incorporation%20doctrine%20is%20a,clause%20of%20the%20Fourteenth%20Amendment

    Of course federal civil rights have long been a thorn in the side of State activity. 42 U.S.C. 1983, for example, is a federal statute permitting individuals to sue States for violations of the rights protected by the Bill of Rights. But since, like the right of privacy, there is no explicit language in the 14th Amendment mentioning any of the protections of the Bill of Rights, there would be no more of a basis for upholding “incorporation” than there is a basis for upholding a right of privacy. Under Alito’s analysis it appears that just as a half century of federal “right of privacy” constitutional protection from State intrusion can be summarily tossed in the garbage can of history, so can the Bill of Rights incorpration analysis. The times they are a changin’.

  23. bearcreekbat 2022-05-11

    incidently, this suggests that Heller also was incorrectly decided. Under Dobbs a State should retain the exclusive power to decide whether its residents may own or possess arms.

  24. mike from iowa 2022-05-11

    Thanks a bunch, bcb. Qualified impunity, given to peace officers by the Scotus, should fall by the wayside since police trip over themselves to violate people’s given rights. But, what do I know?

  25. Cory Allen Heidelberger Post author | 2022-05-11

    BCB, does Heller differ from Dobbs in that the right in question, the right to bear arms, is explicitly mentioned in the Constitution?

    If I understand you right, BCB, are you saying than the Alito decision, if issued officially, would set the stage for us to revisit corporate personhood, boot corporate protections back to the states, and open the door for us to fight ALEC on a state-by-state basis?

  26. bearcreekbat 2022-05-12

    Cory, no, I don’t think that the fact that the right to bear arms is mentioned in the Constitution should save Heller from analysis under the Alito rationale. I think the fact that ties Heller to Dobbs under the Alito rationale is the fact that the 14th Amendment Due Process Clause doesn’t mention “the right to bear arms.” At the time the Bill of Rights was adopted the founders original intent was to only restrict the powers of the federal government, they did not intend to limit the States’ power to outlaw or restrict any of the rights specifically mentioned in the Bill of Rights in individual State jurisdictions. It was not until after the civil war and the adoption of the 14th Amendment Due Process Clause that the SCOTUS began to incorporate specific sections of the Bill of Rights as part of Due Process limiting State’s powers over individuals. Griswald, Loving, Roe and many other decisions used the same rationale to extend a right of privacy from the Bill of Rights to limit State power over individuals. And Heller simply proceeded on a similar basis in determining that the 2nd Amendment restricted States under the 14th amendment. So, in my view, the logical result of Alito’s “originalism” means that the “incorporation” cases were just as wrong as the “right of privacy” cases – (1) historically the Bill of Rights did not restrict the State powers; and (2) the Constitution provision relied upon for incorporation, the 14th Amendment, says nothing about any of the Bill of Rights. Alito’s rationale holds that the Constitution does not restrict State power over individual procreation decisions because (1) historically States could restrict these decisions; and (2) there is no explicit language restricting a State’s power over these decisions.

    Citizens United did not deal with State powers, rather, if I understand it correctly it addressed the power of the federal government. Since the 1st Amendment explictly restricts federal power, that Amendment could be used to analyze the legality of the federal laws restricting corporate political activity. But perhaps your suggestion is right – under Alito’s Dobbs rationale a State should be able to restrict Corporate so called “free speech” within the boundaries and jurisdiction of the particular State since the 1st Amendment doesn’t specifically restrict State action.

  27. bearcreekbat 2022-05-12

    mfi, thanks, as that link is highly pertinent along with the embedded link to the underlying MSNBC story and analysis.

    https://www.msnbc.com/rachel-maddow-show/maddowblog/the-leaked-draft-has-a-fatal-flaw-and-its-even-worse-than-you-think-rcna27416

    This analysis further explains my own reasoning about the danger Alito’s opinion poses to the continued protection from authoritarian and repressive State action currently provided by the “incorporation” into the 14th Amendment of the federal Bill of Rights. The Alito analysis purports to consider whether a restriction on State power is “deeply rooted in this Nation’s history and tradition.” Restricting the power of individual States certainly doesn’t meet that test – both historically and traditionally States desired to be sovereign entities. The US revolution and adoption of the US Constitution were intended to protect this sovereignty. Indeed, it is unlikely that our Constitution would have been ratified had the Bill of Rights expressly stated that it restricted the plenary power of the States. Indeed, the language of the 10th Amendment facially supports this conclusion:

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    Since there is no express language in the Constitution prohibiting the States from taking any action that the Bill of Rights prohibits the federal government from taking, under Alito’s Dobbs rationale the 10th Amendment adds weight to his twisted and anachronistic interpretation that the States retain the power to restrict or eliminate any or all of these enumerated rights.

  28. mike from iowa 2022-05-12

    Quite the link, bcb.,.Thanks. I got the gist of most of it.

  29. leslie 2022-05-12

    Dems are still cleaning up after the miserable condition the Republican’s rendered the state of the nation in. What a strategy of the “No policy but the fear and loathing GOP” https://rollcall.com/2022/05/11/house-committee-approves-supreme-court-ethics-overhaul/

    Every mess remediated leads Republicans ever further down the party’s death spiral. That’s why they fight so hard, and consume all the oxygen, all the messaging in the room. Drowning rats.

  30. mike from iowa 2022-05-12

    I am waiting for permission to repost a link from “What Do I Know” Alaska b log featuring a conversation from Alito’s senate confirmation hearings with Chairman Arlen Specter.

Leave a Reply

Your email address will not be published.