South Dakota became the first state this legislative session to impose such a restriction, passing a bill that further restricts access to abortions through medication on Wednesday.
House Bill 1318 was proposed last month by Republican Gov. Kristi Noem in an effort to limit access to abortion drugs. During the pandemic, the Biden administration made the drugs more accessible before finally lifting the requirement that they be dispensed in-person.
Noem’s bill, which passed the state Senate 32-2, would require women seeking a medication abortion to visit a doctor a second time.
The bill’s supporters, who are abortion rights opponents, argue that the legislation is necessary to protect the mother’s health and prevent drug misuse, but abortion rights advocates argue that the legislation imposes “medically unnecessary” and “burdensome restrictions” on medication abortions.
Meanwhile, Noem and other conservatives are hoping that the US Supreme Court will overturn Roe v. Wade in a forthcoming decision.
The bill, which was passed unanimously by the GOP-majority state House last week, now goes to Noem for her signature.
The South Dakota legislation essentially codifies a state Department of Health rule drafted at Noem’s direction, which was approved in early January but was blocked from being enforced by a federal judge last month. The legislation will not take effect unless the judge’s injunction is lifted, which Noem’s administration is attempting to do through an appeal.
Except in medical emergencies, current state law allows the medication abortion process to begin 72 hours “after the physician physically and personally meets with the pregnant mother,” and usually only requires one more visit to a licensed facility to receive the necessary drugs for the process.
The legislation, like the state rule, would require women to receive both drugs used in a medication abortion – mifepristone and misoprostol – in person at a licensed abortion facility, and would prohibit women from receiving the pills via mail.
A medication abortion, also known as a medical abortion, is a nonsurgical procedure that can be used up to 10 weeks into a pregnancy. It entails taking the two drugs, mifepristone and misoprostol, one or two days apart, and women are usually given both drugs during the same visit to their doctor or clinic.
They take the mifepristone pill at the clinic and are told to take the misoprostol pill at home a day or two later.
Women in South Dakota will effectively be required to make an additional visit to a licensed abortion facility for a medication abortion under the legislation.
A person practicing medicine without a state license would also be charged with a Class 6 felony if they prescribed drugs for a medication abortion. A Class 6 felony is punishable by up to two years in prison and/or a $4,000 fine.
The legislation will also require physicians to report to the Department of Health any complications that necessitate medical follow-ups, as well as the nature of the required follow-up care, the facility where the follow-up appointment was held, and whether or not the pregnant woman was sex-trafficked.
The bill also changes the definition of medical abortion so that it no longer refers to a “procedure for the management of a miscarriage.”
In committee hearings, Mark Miller, the governor’s interim chief of staff and general counsel, argued that requiring the drugs to be taken in-person would allow health risks to the mother to be identified, preventing serious health complications.
However, the ACLU of South Dakota, which sued the state along with Planned Parenthood over the health department’s rule, stated that the two drugs have proven to be safe and are the preferred method of abortion for women because it is less invasive and allows for more privacy.
A separate bill that would have outright prohibited medication abortions in the state passed the state House but was killed in the Senate, where some Republicans objected because it did not provide exceptions for using the drugs in the case of miscarriage, endangering the mother’s life.
Haugaard, who is running against Noem in the Republican primary for governor, voted to pass Noem’s bill through the House.
Republican lawmakers in mostly Republican-led states, such as Alabama and Iowa, have been pushing legislation that would prohibit or limit medication abortion.
South Dakota has enacted a number of restrictions on abortion access, and Noem recently attempted to introduce a so-called heartbeat bill, similar to Texas’ contentious law.