South Dakota has one of the most restrictive abortion laws in the country. Yet when the state’s Gov. Kristi Noem had the opportunity to ease her constituents’ fears on Sunday about the future of their reproductive health since the Supreme Court reversed Roe v. Wade abortion protections, she spouted lie after lie. She slithered out of answering journalists’ questions of whether exceptions should apply to victims of rape and incest and punted to nonprofits when asked how she would support the “mothers” she promised to back. Noem repeatedly promised women wouldn’t be prosecuted for seeking reproductive health services, then just as quickly left room for that exact prosecution to happen.
“I don’t believe women should ever be prosecuted,” the Republican said. “I don’t believe there should be any punishment for women, ever, that are in a crisis situation or have an unplanned pregnancy.”
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When asked what would happen to women leaving the state to seek abortions, Noem said it wasn’t addressed in statute and there would be debate about it.
What is addressed in codified state law that went into effect on Friday is:
"Any person who administers to any pregnant female or who prescribes or procures for any pregnant female any medicine, drug, or substance or uses or employs any instrument or other means with intent thereby to procure an abortion, unless there is appropriate and reasonable medical judgment that performance of an abortion is necessary to preserve the life of the pregnant female, is guilty of a Class 6 felony."
No exceptions.
"I believe every life is precious,” Noem said when asked on CBS’ Face the Nation about abortions resulting from incest or rape. “And we know so much more using technology and science than we did even 10, 15 years ago about what these babies go through the pain that they feel in the womb, and will continue to make sure that those lives are protected.
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“And I just have never believed that having a tragedy or tragic situation happened to someone is a reason to have another tragedy occur.”
U.S. Attorney General Merrick Garland said in a statement released on Friday that the Supreme Court decision does not "eliminate the ability of states to keep abortion legal within their borders" and the Constitution still restricts states' ability to ban reproductive services provided in other states. “We recognize that traveling to obtain reproductive care may not be feasible in many circumstances,” Garland said. “But under bedrock constitutional principles, women who reside in states that have banned access to comprehensive reproductive care must remain free to seek that care in states where it is legal.
“Moreover, under fundamental First Amendment principles, individuals must remain free to inform and counsel each other about the reproductive care that is available in other states.”
That sounds great, but the truth remains that as soon as the Supreme Court rendered its decision, reproductive health became a criminal matter. Really, it was a criminal matter before Friday.
Lizelle Herrera was arrested in May by Texas’ Starr County Sheriff’s Office and held on a $500,000 bond after the sheriff's office reported that she “intentionally and knowingly cause the death of an individual by self-induced abortion.”
She was accused of homicide, and it took the local district attorney to clear Herrera of the charge, which violated Texas penal code noting homicide doesn't apply to the mother in cases of an unborn child’s death.
Despite Democratic governors like Minnesota's Tim Walz signing executive orders and promising other actions to declare states would not prosecute those seeking abortions, 26 states are "certain or likely to ban abortion" without Roe, according to the pro-abortion policy organization Guttmacher Institute. Dr. Herminia Palacio, president and chief executive officer of the institute, said in a statement that those 26 states include 13 states that have “trigger” laws in place to automatically enact bans “within days or even hours” of the Supreme Court decision. South Dakota was one of those states.
“Decades of research consistently show that abortion bans and restrictions don’t reduce unintended pregnancy or demand for abortion, and they certainly do not help people improve their health,” Palacio said. “Rather, they impose significant hurdles to obtaining care, causing stress for people in need of abortion and leading some to experience forced pregnancy and all its troubling consequences.”
The doctor added:
“Evidence also shows the disproportionate and unequal impact abortion restrictions have on people who are already marginalized and oppressed—including Black and Brown communities, other people of color, people with low incomes, young people, LGBTQ communities, immigrants and people with disabilities.”
The Health Insurance Portability and Accountability Act (HIPAA), which many consider federal privacy protection regarding health records, includes exceptions that could "allow prosecutors to compel businesses to relinquish information relevant to a criminal investigation," the health news website STAT reported.
Carmel Shachar, executive director of Harvard Law School’s Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, told STAT the only tool providers have to push back when met with law enforcement agents or prosecutors is to ask for a warrant or subpoena.
“If I was giving my sister or best friend some advice, the first thing I would say is to be very careful about what data in general you’re generating,” Shachar said. “We think about medical records, but our phones collect an amazing amount of data. It’s not a good idea to send texts about your intent to seek an abortion. It’s not a good idea to use an online payment app to buy these services.
“You might want to leave your phone at home as opposed to taking it to the clinic. You may not even want to search for abortion providers on your phone or computer.”
HIPAA does not prevent businesses from obtaining health data outside of medical settings, STAT reported. Eric Perakslis, a cybersecurity and health privacy researcher at Duke University, translated that to mean the more a consumer uses web services, the more at risk they are of their data being available to prosecutors.
“You have your CVS account, your online patient portal, your email where appointment reminders are sent, your SMS stream on your phone. You can see how the threat compounds,” Perakslis told STAT. “It’s very difficult for people to think through that because they compartmentalize.”
Perakslis said those with fewer resources will be more at risk of criminal targeting because they won't be able to seek care at well-insured medical offices with greater privacy protection.
"People with less means are more exposed," he said.
Daily Kos is fundraising to help people access abortions in hostile states and those surrounding them, some of which have already seen an increase in patients traveling across state lines for care after Texas’ six-week abortion ban was enacted. You can make an impact right now by donating to these organizations to help people access abortion in this moment and in the future.
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