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Federal judge says 'no' (again) to South Dakota's mandated abortion counseling

Gov. Kristi Noem vowed to appeal the ruling, which once again struck down a requirement for women seeking abortions to first receive counseling from a so-called "pregnancy help center." The judge called the requirement "paternalistic."

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Dusty law books sit on a shelf in the Minnehaha County Courthouse library in Sioux Falls, S.D., in late March 2021. (Christopher Vondracek / Forum News Service)

SIOUX FALLS, S.D. โ€” A state-backed effort to revive abortion restrictions passed a decade ago by the South Dakota Legislature, but blocked by a federal judge, has been scuttled once again by the same federal judge.

U.S. District Judge in Sioux Falls Karen Schreier wrote in an opinion published on Friday, Aug. 20, that there have been no significant changes in legal rulings around women's federally guaranteed access to abortion services over the 10 years that would upend her prior decision.

The 2011 law required that women seeking abortions must first undergo counseling by anti-abortion pregnancy centers.

That law was passed by the Republican supermajority with bipartisan opposition. Proponents said the law aimed to ward off coercive tactics by a partner or other entity, forcing a woman to have an abortion.

But, in practice, the law made a series of stipulations for women seeking abortions, including obtaining written documentation that they'd undergone a question-and-answer session with a pregnancy help center counselor.

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Some of that law withstood scrutiny, including the three-day waiting period, which is now law in South Dakota . But Schreier again held up for special ire provisions requiring women to give their marital status and health care provider's contact information to organizations that are largely anti-abortion.

"A pregnancy help center counselor enters an interview with a pregnant woman under the paternalistic assumption that the woman has not yet decided to seek an abortion of her own volition," wrote Schreier, in echoing language from her previous opinion, "but rather because she is unable to make a decision on her own and is subject to societal pressures."

Noting attempted legislative fixes to the law in the intervening time did not "ameliorate" but instead compounded an unconstitutional state imposition in a private health care decision, Schreier said her previous preliminary injunction stands.

The ruling against the heart of the anti-abortion law received a swift rebuke from Gov. Kristi Noem, whose Republican predecessor, Dennis Daugaard, previously defended in court the bill he signed into law.

"Given that the US Supreme Court will soon decide on the constitutionality of prohibiting abortion before 'viability,' we are asking the 8th Circuit to recognize that the people's legislators should have the ability to pass pro-life laws," said a statement issued by Noem's office Aug 20.

Past legal losses at the federal level has not stopped lawmakers in Pierre from passing anti-abortion legislation. In 2021, for example, lawmakers passed (and Noem signed) a bill to ban abortions in cases of a diagnosis of Down syndrome.

But there is a federal showdown on abortion coming.

This fall, the U.S. Supreme Court will hear oral arguments about Mississippi's near-total ban on abortions beginning at 15 weeks of pregnancy. Anti-abortion supporters are hopeful that a 6-3 conservative majority on the nation's highest court could peel back legal abortion access for women in several states, including South Dakota.

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South Dakota has a trigger law that would ban abortion in the state were the high court to overturn Roe v. Wade.

Overall, Schreier's Friday ruling effectively keeps in place current strictures on abortion โ€” including a 72-hour waiting period, and a ban after 20 weeks of gestation โ€” but staves off any additional hurdles, such as a sit-down interview from an anti-abortion counselor.

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