“Safe Haven” laws, allowing women who’ve just given birth to surrender their newborns for adoption at hospitals, police stations, fire stations, or other places, were recently all the rage: every state passed them. Justice Amy Coney Barrett uses them as her escape from the argument that she and her fellow theocrats are forcing motherhood on women by taking away the erstwhile constitutional right to abortion. Unfortunately, South Dakota’s newly fanged abortion restrictions may render South Dakota’s safe haven law unconstitutional.
South Dakota’s 2001 safe haven statutes (SDCL 25-5A-27 through 25-5A-35), the only practical guidance directly available from Governor Kristi Noem’s new website to “help” pregnant women on how to place one’s child for adoption, allow parents to surrender newborns up to 60 days old to any emergency medical services provider or child placement agency for adoption anonymously, with no questions asked. Those parents get 14 days to reconsider and ask for their children back; after two weeks, children surrendered to a nurse, EMT, cop, firefighter, or Department of Social Services official become wards of the state or receiving agency and the parents rights are terminated.
However, South Dakota’s abortion statutes (SDCL Chapter 34-23A) refer repeatedly to a “relationship between a pregnant woman and her unborn child.” (I put key phrases in bold below.)
- SDCL 34-23A-1.3 says that relationship exists “during the entire period of gestation”—i.e., from conception to birth.
- SDCL 34-23A-1.4 finds that women have a “constitutionally protected interest” in that relationship and that women who would consider ending that precious relationship by abortion “may be subject to pressures which can cause an emotional crisis, undue reliance on the advice of others, clouded judgment, and a willingness to violate conscience to avoid those pressures.”
- SDCL 34-23A-54 finds that the Legislature needs to “protect the pregnant mother’s interest in her relationship with her child….” This statute further finds that “It is a necessary and proper exercise of the state’s authority to give precedence to the mother’s fundamental interest in her relationship with her child over the irrevocable method of termination of that relationship by induced abortion.“
- SDCL 34-23A-85 finds that the informed-consent disclosures dictated by the Legislature “are important for the pregnant mothers to fully understand that the pregnant mother has an existing relationship with her unborn child while the child is in utero, that the law recognizes this relationship has value to her, and that by terminating that relationship she loses something of great value to herself, and gives up one of the greatest rights she has in all of life.”
- SDCL 34-23A-86 affirms the need for “the legal protection” of a pregnant woman’s “constitutional rights to maintain her relationship with her child.”
Most references to this “relationship” are in Legislative findings, which themselves do not command or prohibit any action. In codifying findings, legislators are writing into law the arguments they expect they’ll need to make in court to defend related laws, clarifying for the court the legislative reasoning and intent that they expect the court to recognize and defer to in upholding those related laws if they are challenged. Thus, while findings have no standalone enacting power, they serve as the foundation of the enacting power of other statutes.
South Dakota’s Legislative findings about the “relationship between a pregnant woman and her unborn child” serve as the foundation for the major obstacles to abortion that the Legislature enacted to undermine Roe v. Wade when that ruling was the law of the land.
- SDCL 34-23A-10.1 requires doctors to provide written statements to women seeking abortions that this “the pregnant woman has an existing relationship with that unborn human being” that “enjoys protection under the United States Constitution and under the laws of South Dakota” (a bold declaration, given that the words woman, relationship, and unborn do not appear in the United States Constitution, but shhhh! Don’t tell Justice Alito) and that abortion will terminate those rights.
- SDCL 34-23A-53 and SDCL 34-23A-58 require that the “pregnancy help centers” to which the Legislature would force women to go for anti-abortion browbeating before having abortions have as part of their principal missions “to provide education, counseling, and other assistance to help a pregnant mother maintain her relationship with her unborn child and care for her unborn child.”
- SDCL 34-23A-56 imposes the 72-hour waiting period (not counting weekends!) that ensures women have time to overcome their clouded judgment, resolve their emotional crises, and, with the necessary and proper advice from pregnancy help centers mandated by the Legislature, recognize and preserve their relationship with their child in utero.
All of this language is ridiculously patronizing, patriarchal, and dismissive of the judgment and equality of women. But until we have legislators willing to recognize and repeal this insulting misogyny, we must consider the implications of this language as our patriarchal legislators have written it into law.
Interestingly, the Alito Court’s reversal of Roe v. Wade last week and its activation of our trigger law banning all abortions except those necessary to save the mother’s life appears to moot the above findings and restrictions. The forced disclosures, abortion waiting period, and pregnancy help center propaganda sessions apply only to a procedure that no woman can legally obtain in South Dakota. South Dakota law already exempted abortions for medical emergencies like the imminent death of the mother from those restrictions, so in Alito’s Gilead, those restrictions no longer matter.
But the “relationship” findings are still law. South Dakota law still recognizes women’s Constitutional (again, where? which Article? which Amendment?) right to relationships with unborn humans in their uteri. South Dakota law deems that relationship “something of great value” to women, “one of the greatest rights” women have “in all of life.” South Dakota law says that relationship is so important that the state should intervene with laws to protect a woman’s “fundamental interest in her relationship with her child.”
Hey—they left “unborn” out of that last one. What happens if we leave “unborn” out of all of those findings?
If a woman’s relationship with an unborn fetus is of overriding value, “one of the greatest rights” a woman can enjoy, then surely her relationship with that entity when it becomes an actual born child is a right of even greater value. A woman (or a man, one would think, since, ex utero, we can make as much of a fuss over a father’s rights as a mother’s, right, Tom Pischke?) who would consider terminating her relationship with her child must be “subject to pressures which can cause an emotional crisis, undue reliance on the advice of others, clouded judgment, and a willingness to violate conscience to avoid those pressures.” A right of such importance demands the state exercise its authority “to give precedence to the mother’s fundamental interest in her relationship with her child over the irrevocable method of termination of that relationship….”
Substitute “adoption” for “abortion”, and South Dakota law, specifically its findings on the state’s fundamental interest in protecting a woman’s Constitutionally protected relationship with her child, indicates that we must repeal our safe haven law.
The safe haven law allows a mother (or a father, but let’s keep out pronouns simple) to relinquish custody of her child on the spot. The mother does not have to sign any form. She does not have to wait 72 hours. She does not have to see a counselor committed to talking her out of putting the child up for adoption. The mother can terminate her relationship with her child without answering a single question or even giving her name.
The termination of that relationship is not instant; SDCL 25-5A-29 gives the mother 14 days to change her mind before the state terminates her parental rights. But South Dakota’s safe haven law does not
impose upon offer to a woman in distress any of the “protection” of her “fundamental”, “constitutionally protected” interest in a “relationship” with her child ex utero that South Dakota’s abortion laws offered to a woman with a child in utero.
Dang—it’s almost as if the people writing our mom/baby laws were focused on making harlots who have nookie suffer through a complete pregnancy and delivery, and that once those fallen women have given birth, they’ve suffered enough for their sins. But who would think such a dastardly thought?
As they stand, South Dakota’s laws spell out a woman’s fundamental right to a relationship with her child. Those laws justified all sorts of restrictions on abortion. Those restrictions are now moot, superseded by the Alito Court and a near-total abortion ban. But those laws and their authors may now turn their hungry eyes toward other threats to that fundamental right… and the plain language of those laws say that safe haven laws, allowing women to terminate their relationships with their newborns anonymously and without restriction, are just such a threat.