American tourist Andrea Prudente and her partner Jay Weeldreyer got a taste of what South Dakota’s new abortion ban feels like last month in Malta, when doctors following that Mediterranean island nation’s abortion ban refused to terminate her miscarrying pregnancy to spare her the risk of infection and death:
Andrea and Jay were on holiday in Malta when she started bleeding and her waters broke. She was 16 weeks pregnant.
Doctors told them that without amniotic fluid, with the placenta partially detached, and so early in the pregnancy, their baby had no chances of survival.
“It was a shock,” Andrea tells me. “The heartbreak of finding out that this baby that we wanted, that we planned for, was going to die, was devastating on its own.”
But when they got to the Mater Dei hospital in Malta, their grief was gradually overshadowed by the realisation that doctors there could not terminate her pregnancy: the baby’s heart was still beating, and under Malta’s complete ban on abortion, this meant there was nothing they could do but wait.
“One of the midwives told me when I would be on the ‘brink of death’ — she used these words — then they might intervene with a termination. It was terrifying,” Andrea tells me.
…Andrea and Jay waited a week in hospital for either her body to naturally expel the foetus, or for her to develop a life-threatening infection. They say this took a heavy toll on their mental health.
“There was this tangled sentiment where every day we would listen to the little heartbeat of this child that we wanted, but the presence of this heartbeat meant I was still in danger. So on the one hand we were rejoicing at the sound of that heartbeat, but at the same time we wanted it to stop,” Andrea says.
Eventually, the couple managed to secure an emergency medical evacuation to Spain, paid for by their travel insurance.
…”Abortion is a complicated, intensely emotional and personal topic and, whatever your ideology is, a complete ban on abortion, in effect puts the lives of women at risk – sometimes for no gain at all,” Andrea tells me.
…”We lost our child, and they also put Andrea’s life at risk,” [Jay] tells me. “We’re not abortion activists, we wanted this baby, but the way the law is written in Malta, is just in complete disregard of the fact that there’s already suffering and pain there” [Sara Monetta, “US Woman Denied Termination in Malta: ‘I Was Terrified’,” BBC, 2022.07.03].
Malta bans all abortions, with no exceptions; Malta’s ban would put doctors and women in prison, but Malta apparently has not recently prosecuted or imprisoned anyone under this law in recent years.
But as Prudente and Weeldreyer experienced, Malta’s abortion ban stops doctors from providing care to protect women from harm. The Maltese doctors’ response to Andrea Prudente’s miscarriage was like saying to a patient who tests positive for coronavirus, “Well, yes, you’re sick, but we won’t give you paxlovid until you need to be put on the ventilator, so let’s just wait and see how this works out.”
South Dakota’s abortion ban (SDCL 22-17-5.1), unlike Malta’s, allows abortions when “there is appropriate and reasonable medical judgment that performance of an abortion is necessary to preserve the life of the pregnant female….” But that language may still cause doctors to hesitate to perform medical procedures as they wait for the hospital’s lawyers to tell them that each medical situation appears to have reached some threshold the hospital could defend in court. And every moment a doctor waits to treat a suffering patient is a moment that suffering continues and can worsen, do more damage, and kill.
Pregnant women considering attending the Sturgis Motorcycle Rally or other tourist attractions in South Dakota should consider whether they want to risk being trapped in a South Dakota hospital and facing the same risk to their lives as Andrea Prudente faced in Malta.
As I asked earlier, a critical question seems to be whether the allegation that danger to the woman’s life justifified the abortion is an affirmative defense that must be raised by a defendant charged with two counts of participating in an unauthorized abortion, one count under SDCL 22-16-4(1) and the second count under SDCL 22-17-5.1?
Other questions include:
What standard is to be used when presenting evidence of the danger to a woman’s life, and what testimony would be required to establish this allegation?
Is only medical expert testimony admissible?
What are the qualifications required to establish the competency of a proposed medical expert to offer an opinion?
May a jury summarily reject a defendant’s medical testimony and convict based only on it’s opinion that that expert is not credible even if the prosecution presents no contrary medical testimony?
Will the threat of being convicted under either or both statutes discouraged medical personnel from helping a woman they in good faith believe to be danger of dying without an abortion?
Ah, what a tangled web the anti-right-to privacy contingent has created for women and medical providers in South Dakota.
There is a remedy for bad law.
“. . . while they continue in force, for the sake of example, they should be religiously observed.” A Lincoln, The Collected Works of Abraham Lincoln edited by Roy P. Basler, Volume I, “Address Before the Young Men’s Lyceum of Springfield, Illinois” (January 27, 1838), p. 112.
https://rogerjnorton.com/Lincoln102.html
Welcome to alternative fact medical misadventures brought to you by uninformed magats with nothing better to do than screw up other’s lives for the hell of it.
Likely to get much worse before the light at the end of the tunnel appears.