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South Dakota's Measure 11 initiative

Updated on November 5, 2008

I received a mailed advertisement today from The advertisement supports Measure 11, an initiative that would ban abortion in South Dakota. The mailer accused “the opposition” of running a deceptive TV ad. I don’t watch TV and so I have not seen this ad. So I cannot determine whether it really is deceptive. What I have done is visit and examined the language of this initiative. To put it mildly, I did not like what I saw.

In the interest of full disclosure, I frankly admit that I am pro-choice and would vote against this initiative even if the problems I raise were adequately addressed. However, this discussion is not for those who are already pro-choice–I’ve no need to preach to the choir. Nor is this discussion meant for those who are already anti-choice–nothing I can say will likely convince them anyway.

Instead, this discussion is for what claims is the “majority of South Dakotans [who] will vote to end abortion as birth control [while] allowing for exceptions for rape, incest and health of the mother.” The backers of this initiative clearly intend to portray this measure as one that reflects the desire of these South Dakotans. According to the mailed advertisement, 97% of abortions are done as a means of birth control. Supposedly, this initiative would put an end to those abortions while still allowing exceptions for the life and health of the mother and for victims of incest and rape.

But is this measure as reasonable and compassionate as its backers would like us to believe? Will this measure only address abortions performed as a means of birth control? Will the exceptions cover the types of issues most South Dakotans really have in mind? Looking at the language of this measure (which you can access here), I have to say that I sure hope that South Dakotans are more compassionate than what this initiative allows. First, the measure’s “Health of the Pregnant Woman Exception” is so narrowly constructed that it may as well not be there since there is already an exception for the life of the pregnant woman. Second, the “Rape and Incest Exception” so utterly fails to realistically deal with the problems rape and incest victims face that taking advantage of the exception would traumatize these victims yet again.

Let’s examine the “Health of the Pregnant Woman Exception.” This exception only applies when “there is a serious risk of a substantial and irreversible impairment of the functioning of a major bodily organ or system.” explicitly states this measure excludes emotional or mental health considerations in considering a woman’s health. Also note that in this supposedly clear exception, “major organ or system” is not defined. Presumably the phrase refers to those organs and systems that are necessary to sustain life–in effect just making this an extension of the Life of the Pregnant Woman Exception. That still leaves many parts of a woman’s body that can be sacrificed in the name of avoiding abortion as a form of birth control.

Exactly what might this mean? I offer a few examples that, while fictional, are not beyond the realm of health problems a woman might face as a result of a pregnancy. Imagine you are a pregnant woman facing these types of problems, then ask yourself if the Health of the Pregnant Woman Exception would offer you any real protection.

Your ovaries might be damaged by continuing this pregnancy. Sorry, the government says the desire to preserve one’s ability to have future children is a form of birth control.

Your pregnancy interferes with you glaucoma medication, meaning that if you carry this pregnancy to term you will go blind much faster than you would otherwise. The eyes aren’t major organs, so obviously you’re using abortion as a means of birth control.

You’re schizophrenic, but your condition is controlled through medication. But your pregnancy and your meds don’t mix. You want to keep the voices out of your head so you can function normally? That is “birth control.”

Let’s be absolutely clear about this. If the pregnancy isn’t going to kill a woman or come damn close to doing so, the “Health of the Pregnant Woman” exception does not cover her. If her condition does not meet this narrow definition of life and health, she is deemed a heartless bitch who uses abortion simply as a means of birth control. It makes this pronouncement without knowing her history, without knowing her circumstances, without knowing even the most basic facts about her. If the woman’s condition does not rise to the right standard, then she will be forced to carry the pregnancy to term, consequences to her health be damned. Is this the kind of exception South Dakotans have in mind? I for one hope most South Dakotans are more compassionate than the writers of this proposal.

Now let’s turn to the rape and incest exceptions. These exceptions will allow a woman impregnated as the result of a rape or incest to have an abortion. Of course, the woman can’t just claim she was raped. After all, we wouldn’t want her to lie and have an abortion as a form of birth control. So, for the rape/incest exception to apply, several requirements must be fulfilled.

In order to fully appreciate the significance of these requirements, I will go over them one by one. The first condition is notably absent in the FAQ at, but is stated in the language of the initiative. Section 7 requires that the abortion performed for a rape/incest victim be done before the twentieth week of pregnancy. This may seem reasonable, but in reality this stipulation places a difficult burden on someone who has already been doubly traumatized.

Consider a woman who has already been traumatized by the act of rape or incest and then finds out she is pregnant. Exactly how did the woman find out? The same way every other accidental pregnancy is discovered–through a missed period. For most women this means as many as four weeks has already passed on this ticking clock before she suspects she is pregnant. Some women naturally skip a period here and there, meaning they may not know they are pregnant for quite some time. Some forms of birth control allow women to skip periods for up to twelve weeks. This means that under normal circumstances a woman might not suspect she is pregnant until the clock is nearly expired.

However, a victim of rape or incest is not operating in a framework that even comes close to normal. She has been traumatized. She is stressed beyond belief. She probably feels dirty and ashamed. She might be in denial. She could be depressed and even suicidal. She might be suffering from post-traumatic stress syndrome. These are some of the normal aftereffects of rape and incest.

While going through this personal hell, what she probably is not doing is keeping track of her periods. It is hardly beyond belief that more than twenty weeks would pass before such a woman comes to enough terms with what happened and seek an abortion. But because it has taken so long, such a woman would be traumatized yet again because the law says what she really wants is “birth control.”

In order to obtain an abortion in cases of rape or incest, the physician must first report this case to the authorities, including “the name address, and date of birth of the woman, and, to the best of the woman’s ability, the date or dates of the reported rape or incest, the location where it occurred, and either the name and address of the perpetrator . . . or . . . a description of the perpetrator and, in the case of incest, a description of the relationship between the pregnant woman and the perpetrator.” Basically, it is up to the woman to put up or shut up.

Assuming the woman has not already reported the rape (in which case the physician’s report is redundant and wasteful of law enforcement’s time), this requirement can only serve to further traumatize the victim of rape or incest. Yes, ideally the crime is reported and the bad guy sent to jail. What this proposal forgets is that we don’t live in an ideal world. In the real world we live in, there are a number of reasons why a woman or teenaged girl (Section 14 of the initiative limits the incest exception to girls under eighteen years old) would not want the rape or incest reported. These reasons include but are not limited to fear of reprisal, anxiety about having her conduct scrutinized, guilt and embarrassment, and self-blame. For such women, this stipulation could very well turn the rape and incest exceptions into another yet another barrier preventing her from recovering from the trauma she has been through.

Another stipulation is that the physician must secure “the woman’s consent to collect a buccal or other biological sample from the woman” along with a tissue sample of the fetus and turn it over to the authorities. Again, this is a redundant requirement in cases where the crime has been reported and a proper rape examination performed. Even this weren’t the case, the Orwellian twist on the term consent is stunning. Now she must “consent” to be violated yet again and have her genetic code be placed on record somewhere. The possible ramifications would be troubling enough if they just affected her, but now those ramifications apply to every single member of her family!

Finally, the physician must document all of these things and make them part of the victim’s permanent medical record. So now we’re going to insure that this woman will be haunted by these traumas for the rest of her life! At what point do we say she has been traumatized enough? When would she ever stop being punished for being raped? Is it really the intent of the majority of South Dakotans to continue to brutalize the victims of rape or incest? I for one hope most South Dakotans are more compassionate than the writers of this proposal.

I have only presented the aspects of this proposal its backers believe address the concerns of the majority of South Dakotans. There are still many other questions this proposal leaves open. Will this measure really stand up in court? How many abortions would this measure actually prevent? Now that a physician could be subject to criminal penalties, what will really happen to the doctor-patient relationship and a pregnant woman’s private medical records? Given that some methods of birth control prevent a zygote from implanting in the uterus, will Section 11 truly protect the medical professionals who prescribe, sell, use, or administer those methods? I believe that the answers provided by are, at best, either hopelessly naive or require too much defiance of common sense to accept. But those are arguments for another day.

Today, what I would like my fellow South Dakotans to do is ask themselves whether this proposal allows real and substantial exceptions for the health of the mother and for cases of rape and incest while stopping abortions as a means of birth control. Ask yourself if these restrictions are what you intended when you said you would support an abortion ban that provided exceptions for the life and health of the mother and for victims of rape and incest. Did you really mean to be that cruel?

For all of our sakes, and especially those of pregnant women already having to face some difficult decisions, I hope not.

Update: Measure 11 was thoroughly trashed at the polls yesterday, failing 55% to 45%. Good job South Dakota!


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