How Did This Happen in South Dakota? Part I

I am being asked by others outside of the state what is really going on in South Dakota. This is my answer - the first part of what will have to be a longer discussion. I apologize for the gaps - I hope to come back and provide links or further information where I can, once I get the entire piece done. Anyone who has any information to add in order to help me flesh this out for the benefit of others, please do so by leaving a comment.

Before I begin, let me define my terms. There has been far too much game-playing with language on the the side of those who want to prevent women from making their own choices about abortion. Language has political power, and the very fact that advocates for choice have to explain that they are not necessarily in favor of abortion, but that they feel decisions about abortion should be left up to the pregnant woman, illustrates the extent to which the anti-choice faction has succeeded in framing the issue for the majority of us.

- I will use "fetus" because it is the correct medical and legal term. I may use "baby" later on, if I feel it is appropriate in a particular context.

- I will use "pro-choice" and "anti-choice" to refer to the two opposing political sides in this debate. The terms "pro-abortion," "anti-abortion," and "pro-life" are no longer useful. Very few people would call themselves "pro-abortion" these days; the only regular usage this term has is from anti-choice groups to refer to pro-choice groups.

"Anti-abortion" is a fuzzy term, thought this may not be immediately evident. The reality is that many people who are politically pro-choice are also anti-abortion - they believe that abortion is wrong, or bad, or tragic, but they also believe that they cannot legislate this decision for others. Further, "anti-abortion" does not clearly define the anti-choice movement, as it is clear that this movement is not narrowly about preventing abortion, but more broadly about preventing women from having access to and education about contraception, from regulating their fertility and determining whether or not to get pregnant, and from being sexually active outside of marriage. In effect, it is about preventing women from making choices about their sexuality and their fertility.

Finally, "pro-life" has become a meaningless term. Who is "pro-death"?

I have some ambivalence about referring to the anti-choice movement by terms it has not claimed. As a feminist scholar, I try not to do that in my research because it feels disrespectful to me to do so. However, given the strategic use of language that the anti-choice movement has employed, I think my terms are fair.

Now - let's take a look at what happened in SD and what it all means.

Some background to the ban
For the last few years, the SD Legislature has been working to ban abortion in SD. The SD Department of Health website argues in no uncertain terms that abortion is harmful to women, presenting misleading and inaccurate information. The committee that determined what the content of the website was stacked with anti-choice members, and evidence that differed from their perspective was not included. (I was one of many who provided the committee with research that countered many of the shaky claims the website made, but the committee did not make my suggested changes.)

A few years ago, a "partial-birth abortion" ban was passed in South Dakota. There is, of course, no such medical procedure as a "partial-birth abortion." That it has been banned nonetheless is more evidence of the success of the anti-choice movement in not only framing the debate but also in effectively politicizing the very language we use to have the debate in the first place.

In 2004, the Legislature passed an abortion ban that the Governor refused to sign, as he feared the language of the ban would nullify existing abortion restrictions while the law was making its way through the courts (because it is, of course, unconstitutional).

Most recently, a task force to study abortion was formed so that it could report back to the Legislature. This task force, too, was stacked with anti-choice activists. There were some pro-choice activists, but they were in the minority. The task force set out to determine that it had found evidence of exactly what it wanted to find. To do this, it set aside scientific research, statements by the CDC, and basically most factual information about abortion. Then, the task force's "findings" were used to write the current ban.

Let's be absolutely clear: the purpose of the task force was to provide an excuse for the ban. It allowed proponents, such as Roger Hunt, to argue that, when faced with the "scientific evidence" that the task force provided - that life begins at conception - lawmakers had to take steps to protect South Dakota's citizens most in need of legal protection: fetuses.

In case anyone isn't following closely, let me point out that SD has perhaps the highest rate of dual income families in the country, which should tell you something about the need for two incomes in this state. It also has, I believe, the two poorest Indian Reservations in the country. In Sioux Falls, we have a quickly growing refugee population from war-torn areas like the Sudan. We have homeless people, people without health insurance, people living in poverty; we have children who are waiting for adoptive families to materialize; we have women who cannot afford birth control or prenatal care or another child; we have domestic violence and rape; we have AIDS (75% increase in the last year in HIV infection); we have legislation coming up for a vote in the fall that would make only heterosexual, legal marriage recognized in SD. But our State officials believe that fetuses are the most vulnerable members of our society.

The abortion ban outlaws virtually all abortions in SD. The sole exception is for abortions that save the life of the mother, though in such cases, doctors must make an effort to save both the mother and the fetus.

The ban does not allow exemptions for rape and/or incest. This is ostensibly because the intent of the ban is to prove the personhood of the fetus: the ban has been drawn up specifically to present a challenge to Roe v. Wade. Making an exception for rape/incest, then, would suggest that the fetus is not really a person - otherwise, one could not destroy it for any reason unless the life of the mother were at risk. However, SD Sen. Napoli suggested, in his appearance on PBS' Newshour, that if a virgin were brutally raped and sodomized - one has to conclude that he was making a distinction between such a case and just an average, not-so-bad rape - she might be able to get an abortion under the exemption for a woman's life, as she would be severely traumatized.

Further, the ban's proponents have recently argued that because EC is available, a woman who is raped can take advantage of EC and therefore not need an abortion. This might sound reasonable - after all, the whole point of EC is to prevent pregnancy - until you remember that these same proponents have fought repeatedly against mandating that EC, or information about EC, be made available in the ER to women who have been raped - or that many doctors and pharmacists in SD frequently choose not to give prescriptions for or to stock EC to begin with - or that most survivors of rape probably wouldn't think to ask about EC while in the midst of their trauma - or that survivors of incest are certainly not going to be walking into ERs to get medical attention for rape anytime soon.

Most recently, some proponents have argued that in the case of rape/incest, abortion would destroy evidence - a comment that is so outrageous that I can do nothing right now but splutter in response.

The ban also does not allow exemptions for risks to the health of the mother, whether physical or psychological, for the same reason that there is no exemption for rape/incest.

Finally, you should understand that this ban follows on the heels of another disturbing development. Local abstinence activists and conservative churches banded together to force the school board to remove from the public schools a new sex education curriculum that this very vocal minority found inappropriate (especially for middle-school-aged children). Specifically, they objected to items in the teacher's manuals that were never intended for students to see, such as explanations of oral and anal sex. They also objected to information about condoms and other forms of birth control, which they felt conflicted with the message that abstinence was the best practice. And, believe it or not, many of them insisted that their middle-school-aged children did not know anything about any of these things and were not ready to hear about them.

So, to sum up, we have a Legislature that accepts as a basis for its lawmaking personal, religious beliefs masquerading as scientific evidence. We have a ban on abortion that tells women that, not only are they not able to make the best decisions for themselves, but that, in the event that they are raped or that their health is at stake as a result of a pregnancy, their suffering is not important. And, we have a vocal and powerful minority of activists who are now pushing for an abstinence-only approach to sex education (they introduced a bill in this legislative session).

(Stay tuned for Part 2.)