Three weeks ago, South Dakota Right to Life blocked Representative Taylor Rehfeldt’s (R-14/Sioux Falls) effort to make a teeny-weeny expansion of South Dakota’s near-total abortion ban to add the risk to a pregnant woman of “substantial and irreversible physical impairment of one or more bodily functions” as legal justification for terminating a pregnancy. Yesterday, SDRTL appears to have blocked Rehfeldt’s fellow nurse and, under South Dakota law, second-class citizen Senator Erin Tobin’s (R-21/Winner) even smaller change to the abortion ban.
Chairing Senate Health and Human Services yesterday morning, Senator Tobin wanted to hoghouse House Bill 1053. Instead of passing Representative Fred Deutsch’s (R-4/Florence) effort to deny medical cannabis cards to pregnant or breastfeeding women, Tobin posted an amendment that would hoghouse HB 1053 to provide the following clarification of South Dakota’s sole grounds for a legal abortion:
Notwithstanding any other law, before an abortion may be justified as necessary to preserve the life of a pregnant female, as set forth in § 22-17-5.1, the attending physician, exercising reasonable medical judgment, must determine that the female suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, which would place the female in danger of death, unless an abortion is performed [Senator Erin Tobin, potential hoghouse amendment to 2023 House Bill 1053, published but not moved, 2023.03.01].
While the title of Tobin’s hoghouse amendment said the intent was to authorize abortions “to avert the death or physical impairment of a pregnant female”, the language of the amendment does not appear to allow abortions to avert physical impairment alone, only “danger of death”.
Tobin did not explain the scope of her amendment, because neither she nor anyone else on Senate Health and Human Services moved it or even mentioned it. The closest anyone we came to having a discussion of clarifying or expanding the exception to South Dakota’s abortion ban came during discussion of another bill, House Bill 1220, which offers immunity from criminal prosecution to any women who undergoes an abortion (though still not for women who seek or obtain abortion medication, who attempt to travel out of state to obtain abortion services, or who dare help other women access reproductive health services that the state deems uppity). Calling SDRTL boss Dale Bartscher back to the table, Senator Tobin pointed to language (actually medical malarkey, but medical professional Tobin didn’t point that out) Bartscher recited in support of HB 1220:
Tobin: Looking at the statement that you handed out to us, you have highlighted at the end of this second paragraph here, “Far too many American women suffer devastating physical and psychological damage following abortion.” With that in mind, do you think there’s a place in the future to look at the health of the mother because that would also affect physical and psychological damage to that mother?
Bartscher: …Right to Life definitely will continue to collaborate with anyone on issues of the protection of the mother and the baby in the mother’s womb.
Tobin: Wonderful. It seems like it’s a very high priority here in this statement, so I will be expecting further work on that [Senator Erin Tobin and SDRTL exec Dale Bartscher, Q&A during Senate State Affairs hearing on 2023 HB 1220, 2023.03.01, transcribed from SDPB audio timestamp 1:22:35].
Tobin didn’t phrase her question directly as a question about her potential hoghouse amendment or about exceptions for abortion. Apparently, the Republicans who depend on South Dakota Right to Life’s endorsement aren’t allowed to ask SDRTL direct questions on the record. But everyone in the room understood the challenge Senator Tobin was posing… and everyone reading Bartscher’s exact words can see that he completely avoided the question of whether his special interest group would ever allow Republicans to pass an exception for mothers’ health to the absolute abortion ban they so cherish.
Following the hearing, Senator Tobin tweeted what she believes will happen if Bartscher and South Dakota Right to Life don’t relent and allow more sensible, humane exceptions to the abortion ban:
The SDGOP spin blog endorses Senator Tobin’s fear: failing to moderate South Dakota’s extreme position on abortion increases the chances that South Dakotans will approve restoring the Roe v. Wade-era abortion rights that they endorsed in 2006 and 2008 ballot measure votes via an initiated constitutional amendment on the 2024 ballot. Senator Tobin made that point last month when SDRTL blocked her and Representative Rehfeldt’s attempt to defuse abortion tensions with their minor exception, and she’s sticking with it.
Having deterred Senator Tobin from proposing her hoghouse amendment (and why back down, Senator Tobin? Even if you don’t have the votes, why not propose it, put SDRTL on the hotseat, and discuss their absolutism in the open instead Bartscher hide behind his mealy-mouthed deflections?), South Dakota Right to Life has apparently used its special-interest power to block any attempt to protect the life and health of pregnant women in South Dakota. Senator Tobin is warning that SDRTL is counterproductively helping supporters of women’s rights make their argument that South Dakotans need to offer that protection themselves by putting abortion access on the ballot and into the state constitution. On that latter point, I can say, for once, Keep up the good work, Dale!