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The uncomfortable truth about South Dakota’s new abortion law

The governor of South Dakota has signed into law a bill that would ban virtually all abortions in the state. Neither the governor nor any of the law’s supporters, however, have been honest about what the effect of the law will be.

The law’s supporters want to create the impression that only the people providing the abortions will be punished, not the women having them. They are not brave enough to admit what is clear: Women will be punished, and they and their families will suffer if this law goes into effect.

We know that before 1973, when abortion was illegal in most states, even if a statute did not specifically provide for the prosecution of the woman who had the abortion, pregnant women could still be arrested under separate laws permitting the prosecution of those who aid and abet a crime. Moreover, as Leslie Reagan pointed out in her book, “When Abortion was a Crime,” many women, while not arrested, were publicly shamed and subjected to police investigations that were, in and of themselves, a form of punishment.

Undoubtedly, the law’s supporters will point to language that specifically states that “nothing in this Act may be construed to subject the pregnant mother upon whom any abortion is performed or attempted to any criminal conviction and penalty.” The truth is, though, that this particular act need not authorize arrests of pregnant women for arrests to start taking place.

South Dakota has adopted numerous laws that seek to establish the unborn as full legal persons. For example, there is a feticide statute that makes the killing of an “unborn child” at any stage of prenatal development fetal homicide, manslaughter or vehicular homicide. There is also a law that requires doctors to tell women that an abortion ends the life of “a whole, separate, unique living human being.” The new law explains that life begins at the time of conception, and that each human being is totally unique immediately at fertilization.

If the unborn are legal persons, as numerous South Dakota laws assert, then a pregnant woman who has an abortion can be prosecuted as a murderer under already existing homicide laws.

Far-fetched? Not at all. Prosecutors all over the country have been experimenting with this approach for years. In South Carolina, Regina McKnight is serving a 12-year sentence for homicide by child abuse. Why? Because she suffered an unintentional stillbirth. The prosecutors said she caused the stillbirth by using cocaine, in spite of evidence that McKnight’s stillbirth was the result of a common infection.

While South Carolina is the only state whose courts have upheld such prosecutions, pregnant women in states across the country, including South Dakota, have already been arrested as child abusers or murderers – without any new legislation authorizing such arrests. In Oklahoma, for example, Teresa Hernandez is sitting in jail on first-degree murder charges for having suffered an unintentional stillbirth. In Utah, a woman was charged with murder based on the claim that she caused a stillbirth by refusing to have a Caesarean section earlier in her pregnancy. If women are now being arrested as murderers for having suffered unintentional stillbirths, one should assume that intentional abortions would be punished just as seriously.

Rather than admit that this law will hurt pregnant women and mothers, South Dakota’s legislators pretend it protects them. Indeed, they named it the “Women’s Health and Human Life Protection Act.” In another age we might expect that such legislation would address such urgent women’s health problems as breast and cervical cancer; the fact that 88,350 South Dakotans, the equivalent of 12 percent of the population, are without health insurance; or the fact that South Dakota guarantees no paid maternity leave for the many mothers who must continue working in order to feed their families.

Far from protecting women’s health, this law will undermine women’s health – because women will have abortions for health, family and personal reasons, whether they are legal or not – and it will open the door to the arrest of women themselves. And while the law’s supporters might claim it protects innocent unborn life, South Dakota’s lawmakers should be honest enough to admit that in passing this law they are attacking the women who give that life and ignoring the real-life criminal and public health consequences of the law.

Lynn Paltrow is executive director of the National Advocates for Pregnant Women. Charon Asetoyer is executive director of the Native American Women’s Health and Education Resource Center in South Dakota. She is currently running for office in the state Legislature.