The South Dakota Legislature took little action on abortion this Session. Under the watchful gaze of their smiling happy overlords at South Dakota Right to Life, Republican legislators left in place South Dakota’s near-absolute abortion ban, which prevents women from terminating their pregnancies at any stage unless their pregnancies put their lives in imminent danger… and only if doctors can figure out when that danger crosses a medical and legal threshold that will insulate them and their employers from felony conviction. Legislators did pass House Bill 1220, codifying the Governor’s thin promise not to prosecute any woman who aborts her pregnancy.
Now that South Dakota Right to Life has blocked tempering of South Dakota’s abortion ban, what might they have in store for the 2024 Session?
Stop me where the logic breaks.
The State of South Dakota predicates its near-total abortion ban on the notion that a female human ovum that has been penetrated by a male human sperm is a human being and that the state has a compelling interest in preserving the relationship between the female human and whatever sprouts from her sperm-penetrated ovum. That compelling state interest outweighs women’s claims to bodily autonomy.
To fully protect that interest and those new monocellular human beings, the state needs to know they exist.
We register births and issue birth certificates so the state knows about and can protect every child.
Thus, we need a pregnancy registry and conception certificates so that state knows about and can protect every embryo—every child, as Dale Bartscher and Jon Hansen say; every human being, as state law says. State law should thus require women to report that they are pregnant.
HB 1220 prevents the state from punishing women for aborting a pregnancy, but it does not prevent the state from punishing women for failing to report a pregnancy. Thus, the state could impose the same penalty for failing to register one’s conception as it does for failing to register a birth outside an institution (and most conceptions happen outside an institution, so the legal analogy seems apt): Class 2 misdemeanor, up to 30 days in jail and $500 fine.
But when must woman register? As soon as she finds out? Women may not realize they may be pregnant for a couple-three weeks, until they miss a menstrual period. They may not know for sure until they take a pregnancy test or visit the doctor. But what if woman doesn’t go in for checkup? What if woman doesn’t find out for sure that she’s pregnant until three, four months in? We can’t leave human beings in utero unprotected for that long, or for any long.
Fertile women must thus submit to regular pregnancy tests. To ensure universal compliance, the state will require the installation of human chorionic gonadotropin (hCG) detectors in every toilet, public and private. The detectors will include wireless transmitters that will signal the Department of Health anytime that pregnancy-signaling hormone is detected. The signal will include the PIN—pisser identification number—that every toilet user must punch into a keypad on the toilet to unlock and lift the lid. (The state will require that along with hCG detectors, wireless gear, and PIN keypads, toilets come with mechanisms to automatically close the lid when the flush lever is depressed, so women will universally support this innovation.) The state will not require hCG detectors or PINs on urinals, for obvious reasons.
But pregnancy tests are only 97% accurate and usually aren’t reliable until a couple weeks after conception. What do we do about those newly conceived humans who haven’t been detected?
The state’s interest in new life and new mother-child relationships compels the state to create a sex registry. The state will require individuals to report to the Department of Health the date, time, location, and name of partner in any potentially procreative sexual activity. The state can incentivize women to report by using reported sexual activity for subsequent child-support claims. The state can incentivize men to report by posting weekly, monthly, and yearly Top Scorers lists (only for men who opt in, of course, because we still respect privacy). The state will facilitate easy and instant reporting by developing and issuing a smartphone app, the Nookie And Intimate Liaisons Registry, which will allow users to post NAILR alerts on their social media friends and followers. The Department of Health will use its NAILR reports to contact potentially impregnated women to inform them of their rights, obligations, and embryo-protective restrictions on their activities.
The state’s compelling interest in protecting all human beings and mothers’ relationships therewith logically requires immediate and universal state knowledge of the existence of every human being in utero. The state needs to engage a variety of surveillance tools in its overriding interest in protecting all human life—and with powerful surveillance tools abounding in citizens’ pockets, purses, doorbells, TVs, refrigerators, we can achieve additional monitoring of potentially pregnant and thus life-bearing women with a trivial flipping of software switches. But a state pregnancy registry, universal pregnancy testing, and a state sex registry, with appropriate penalties for non-compliance, are among the logical policy tools the state must use to fulfill its compelling interest.
South Dakota Right to Life is watching, and soon, women, the state will be watching you. Logically, the state has to, because, Life.
…. and what about State Farm (or any other insurance company) refusing to write life insurance on the zygote??
Interesting observation Cory. I noticed that on Thursday, March 16, the Rapid City Journal published a story on page A3 about proposed legislation in South Carolina titled the “Prenatal Equal Protection Act.” Interestingly, that proposed legislation reportedly would “provide equal protection of the laws to all pre-born childrenfrom the moment of fertilization.” Further, the story states that “Under the bill, an abortion could be punished like any murder, leading to sentences of 30 years in prison up to the death penalty.”
I don’t see any meaningful difference in the language and effect of this legislative proposal from current South Dakota murder law, given South Dakota’s statutory definition of “unborn child” covering fertization, as well as the specific language in South Dakota’s murder statutes that includes an “unborn child.” And, of course, that statutory language certainly supports your thesis in this story about the additional criminal implications of a pregnancy register, especially since current binding federal and state double jeopardy supreme court decisions allows the State to prosecute an individual under multiple statutes for a single act – here an unauthorized abortion.
I was surprised, however, that the RC Journal didn’t mention South Dakota’s updated post-Dobbs murder law and death penalty in or near the page 3 article about the South Carolina proposal. Why a proposed Draconian South Carolina law deserves a public story while existing South Dakota law that already authorizes the same death penalty for involvement an unauthorized abortion is ignored.
What about all child-bearing-aged women and all that potential life she’s walking around with? Ka-ching. There are thousands of abusive men each year tossing and slapping and choking potentially millions of possible infants’ hosts around without a care in the world. What about the thousands of young potential mothers being forced to eat a crappy meal in the prisons and jails all throughout SD? That food is unfit for imaginary children. Yeep, all three branches of government are responsible for endangering could-be ‘babies’ everyday. To the gallows! We have got to put up every woman and girl at the Ritz with around-the-clock protection and only let in proper suitors. Heck, marry them off to RTL senior men at 14. That’ll be best for SD.
On a similar note, on Friday, March 17, the RC Journal also published another story on page A5 about a court ruling in South Dakota’s sister state, North Dakota, in which the court reportedly upheld a temporary injunction against North Dakota’s new abortion ban. That court reportedly ruled that:
The Court rejected the State’s argument that there is no “explicit support” to any “un-defined right to ‘heath”’ in the North Dakota Constitution.
Article I, section 1of the North Dakota Constitution reads in relevant part:
Similarly, Article VI, section 1 of the South Dakota Constitution reads in relevant part:
Given the similarities in language, this North Dakota decision seems an important precedent for South Dakotan’s to argue they too have a fundamental right to seek an abortion to protect health, and even perhaps protect happiness. Of course, the State would have a similar and perhaps stronger “literal language” argument against such an interpretaion of the SD Constitution as raised by North Dakota since the the SD Constitution only explicitly guarantees “men” such rights. Women could be left without unprotected depending on the how the South Dakota Supreme Court interprets this provision.
Preach it, Professor H.
Since one of the methods an IUD prevents pregnancy is by preventing implantation of a fertilized egg could some zealous individual or group bring a court case attempting to outlaw IUDs under South Dakota law? Would such a lawsuit stand much of a chance of success in SD?
Register pregnancies, but, not guns. Makes sense only in magat land.
More on abortion laws from Mark Joseph Stern from Slate….
I believe Wyoming just outlawed abortion pills.
Nick, since a “fertilized egg” is defined by South Dakota statute as a “unborn child” and since the SD murder statutes explicitly cover the killing of an “unborn child” as defined by SD statute, I would think a criminal prosecution of anyone helping a woman use an IUD certainly certainly be charged as an accessory to murder or for an attempted murder.
As for a lawsuit seeking to outlaw IUDs, however, I suppose it could be compared in many ways to a gun. Just because guns are used to kill humans, the argument goes, doesn’t mean guns should be outlawed, any more than any other item that can be used to commit a crime. The argument follows then, that people, not IUDs, kill fertilized eggs.
Great, Cory, did you really have to give them ideas?? ;-)
The whole concept of fertilized eggs having full rights does lead to a lot of mind bending outcomes.
As Nick points out, birth control is next.
Much of this discussion centers on matters of brood-sow law. That’s a body of laws which attempted to address the matter of breeding slaves for the profit potential of their progeny and the rights involved in maintaining such chattel. Anti-abortion law descends from those concepts. And, of course, it assumes that women do not own their own bodies. Zygotes are endowed with the status of fully developed human beings on the basis of profit potential.The question of actual ownership of the chattel, the brood-sow, is left hanging. Lacking a slave market, there’s no way to determine the worth of the chattel or her progeny. But the fear of a brood-sow revolt is fended off with threats of murder charges if the zygotes are not permitted to grow into full human status. The chattel mongers are right to fear hordes of angry brood-sows who want their full humanity acknowledged.
buckobear, . . . and more importantly, PAY on those insurance policies when miscarriages happen. Given the miscarriage rate, that will affect the actuarial tables; especially when policies are dropped after delivery. I can only imagine that becoming the new investment/security boom to monetize.
bearcreekbat, so people can purchase all the birth control they want under the assumption they are collectors? It would be the states’ burden to bring charges agains them ONLY at the point birth control is used to commit a crime — just as guns are. The criminal act must be the USE of birth control — and even then, only the USE with INTENT to prevent a fertilized egg from reaching maturity.
Blue States are going to boom. Minnesota will continue to leave and lead rhe states surrounding it.
So when does a frozen embryo reach voting age?
Mind bending enough?
Aaron Aylward said repeatedly and publicly that an abortion ban would not lead to a “Handmaid’s Tale.”
I don’t see how it can not so lead.
They may already be testing samples from the waste at the municipal water treatment house for reproductive tells. They have a thirst for evidence. They cannot wait to force everyone into stirrups to take a looksie. Pregnancy sniffer dogs…they must search what’s in your drawers….
In the spirit of S D Legislative stupidity
A law will be passed titled
This is to insure males do not waste their
Capacity to procreate.
All males will be tested after age 12!
O, that seems to be the current reality under the rationale of our Nation’s gun culture.
Look what is undoubtedly coming to a magat state near you…
First three or four paragraphs should be enough to scare the pants off “normal” Americans.
Pretty soon, they’ll outlaw tubal ligation and vasectomies.
How about this for philosophical chewing gum: is rape wrong if a man is trying to create a life? If the state says the woman must carry life to term, then how can the act that created that life be considered a crime? The state has already taken the woman’s consent out of the equation, so should the sperm donor also be relieved of her consent?
How is making woman have babies against their will substantively different between those two cases?
Here is the nightmare reality phony magat kristians are giddy to force on all women everywhere….
It isn’t pretty, but petty.
Anne- your point turns my stomach. I am still glad you reached beneath the surface and yanked that fugly creature into the light.
e platypus onion- your article is a siren screaming the conveyor belt of progress has been set to reverse and we need to stop that bullhonkey from destroying everything our moms and grannies have worked so hard on to get the gears moving forward. It is all so wrong and backwards and happening while people stare into their phones. Look up, people. It reminds of the silly sitcom where all the spaghetti jars start falling off the assembly line because someone stopped paying attention and when it is noticed, it is just too big of a mess to deal with.