Abortion rights supporters in South Dakota blast state's video of abortion laws

A newly released, state-produced video intended to help doctors comply with South Dakota’s strict abortion law isn’t specific enough to ensure health care professionals don’t violate the regulations and open themselves up for prosecution, a group of abortion rights supporters said Friday.

But supporters of the video, which was mandated by the Legislature and funded by taxpayers, said the roughly six-minute video posted Wednesday to YouTube is exactly what lawmakers demanded and gives clear guidance to physicians.

South Dakota outlaws abortion as a felony crime except to save the life of the mother. But a ballot measure seeks to add abortion rights to the state constitution — one of nine states that will vote on similar measures in November. The abortion rights side has prevailed in all seven states with abortion-related ballot measures since the fall of Roe v. Wade in 2022.

“I think it would be foolhardy for a doctor to use this video as a guide to navigating the waters of our medical landscape after the abortion ban,” said Dr. Marvin Buehner, a recently retired, longtime OB/GYN. He said the video offers no guidelines or clarity and doesn't help physicians practice medicine in South Dakota.

In the video, Department of Health Secretary Melissa Magstadt talks about the law and a “non-exhaustive list of conditions that could necessitate ending a pregnancy pre-viability.”

“The key for a physician to ensure they are practicing within the bounds of the law is to document their decision-making process and how that led to their recommended course of treatment,” she said.

The video includes a disclaimer saying the video is not legal advice, any legal questions should be referred to an attorney, and the video and its content are not legally binding.

Supporters of the South Dakota measure say the video is political cover for anti-abortion opponents to the ballot measure. They also said the video lists exceptions and words not in the law. The secretary's video statements are meaningless, they said, because she has no legal authority, and due to the disclaimer.

“How can doctors rely on this if they're prosecuted for doing something that the video suggests they can do, and they can't use the video in their defense? It's absolutely a joke,” said Nancy Turbak Berry, a lawyer and Democratic former lawmaker supporting the measure. She and Buehner held a news conference Friday about the video.

She said she senses the state is embarrassed or concerned about the abortion law's effects because the secretary's statements, “apparently trying to smooth off some of the rough edges of our extreme abortion ban," suggest things no prosecutor would agree are legal.

The video notes that its collaborators included the health department, the state attorney general's office, the American Association of Pro-Life OB/GYNs and several OB/GYNs practicing in South Dakota.

Republican state Rep. Taylor Rehfeldt, the bill's prime sponsor, said she believes the video provides clear guidance for health care providers. She called the legal disclaimer “a standard component.”

“The purpose of the video is not to serve as legal advice but to ensure that providers have a clear, step-by-step process for making medical decisions in these critical situations,” she said via text message.

The South Dakota ACLU opposed her bill. The video is from a “do-nothing law” that won't help anyone or even require anyone to view it, South Dakota ACLU Advocacy Manager Samantha Chapman said.

“It just exists on a website, and that's the end of the story. Unfortunately, that's not the end of the story for people who are trying to survive through South Dakota's draconian abortion ban,” she said.

Abortion laws in other states have been criticized as being unclear. Earlier this year, the Texas Supreme Court upheld the state’s abortion law and ruled against opponents who said the law is too vague about its medical exceptions.

In North Dakota, the former sole abortion clinic in the state and several doctors who are challenging the state's abortion ban say the law is unconstitutionally vague as to its exceptions.

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Dura reported from Bismarck, North Dakota.