February 18, 2014 — The South Dakota Legislature is likely to pass a bill (HB 1241) that would effectively ban abortions after the first trimester, an unprecedented restriction that could create a model for antiabortion-rights lawmakers in other states, Politico Magazine reports.
HB 1241, proposed in early February, would make it a felony for an abortion provider to "dismember" a living fetus during an abortion procedure. According to Politico Magazine, the ban would effectively ban dilation and evacuation, or D&E, abortion, "a common procedure used in nearly all second-trimester abortions."
Abortion providers typically use D&E for abortions starting at about 14 weeks of gestation because the fetus might not otherwise fit in a cannula, "the hollow plastic tube commonly used in abortion procedures," Politico Magazine reports. The procedure is also necessary because federal law bans the removal of an intact, live fetus under the 2003 Partial Birth Abortion Ban Act (PL 108-105).
Further, in most cases abortion providers cannot inject a fetus between 14 weeks and 16 weeks to ensure fetal demise prior to dismemberment because the fetus is usually too small. Cheryl Chastine, a family physician who provides abortions in Kansas, explained that the bill also could discourage abortion providers from performing abortions toward the end of the first trimester because a fetus can also potentially separate into pieces during a first-trimester aspiration abortion.
Ban as Antiabortion-Rights Strategy
Abortion-rights opponents believe that describing the procedure in graphic terms will work in their favor, a strategy that mirrors their tactics in passing the Partial Birth Abortion Ban Act. They also argue that because the bill does not restrict D&E in cases when fetal demise has already occurred, the legislation is not an abortion ban but a regulation of how abortion providers can perform the procedure.
The strategy also shares commonalities with a spate of 20-week abortion bans enacted in several states. Those bills were first proposed in states where abortion providers did not offer the procedure at that point in a pregnancy, which "gave an appearance of constitutionality to the pre-viability ban simply because no one had the legal standing to take a case to court," according to Politico Magazine.
Similarly, the D&E ban could go unchallenged in South Dakota because the state's sole abortion clinic only performs first-trimester procedures. Abortions after that time are handled by hospitals, which "are far less likely to want to get involved in something as politically charged as a court battle over abortion," according to Politico Magazine.
The bill is expected to pass, meaning that the main uncertainty is whether it will be challenged in court. Politico Magazine reports that abortion-rights opponents are likely to gain from either scenario. An unchallenged bill would set a precedent for similar bans elsewhere, while a court challenge would give them a bigger platform for discussing the procedure in graphic terms (Marty, Politico Magazine, 2/17).