Some of the language in South Dakota's abortion rights petition seems vague and could use clarification
I think I’m the first Pennington County signer of the abortion rights petition (promoted above in an image from Dakotans for Health on X) circulating in South Dakota. I remain a strong supporter and couldn’t be more hopeful that it will gather up enough signatures to make the November ballot. If it does, based on earlier votes, I think a majority of South Dakotans will amend our state’s Constitution and make abortion rights the law in our state.
A physician friend (sorry, no names, no gender), also a strong supporter, and I discussed the petition yesterday. Said friend brought up an interesting point about some of the wording, which caused me to review the language of the amendment. Before going on, here’s the petition itself. It begins with the Attorney General’s explanation and is followed by the text of the amendment.
Title: An lnitiated Amendment Establishing a Right to Abortion in the State Constitution.
Attorney General Explanation: This initiated amendment establishes a constitutional right to an abortion and provides a legal framework for the regulation of abortion. This framework would override existing laws and regulations concerning abortion.
1. The amendment establishes that during the first trimester a pregnant woman's decision to obtain an abortion may not be regulated nor may regulations be imposed on the carrying out ofan abortion.
2. In the second trimester, the amendment allows the regulation of a pregnant woman's abortion decision, and the regulation of carrying out an abortion. Any regulation of a pregnant woman's abortion decision, or of an abortion, during the second trimester must be reasonably related to the physical health of the pregnant woman.
3. In the third trimester, the amendment allows the regulation or prohibition of abortion except in those cases where the abortion is necessary to preserve the life or health of the pregnant woman. Whether an abortion is necessary during the third trimester must be determined by the pregnant woman's physician according to the physician's medical judgment. Judicial clarification of the amendment may be necessary. The Legislature cannot alter the provisions of a constitutional amendment.
Amendment Text: That Article VI of the Constitution of the State of South Dakota be amended by adding a NEW SECTION:
1. Before the end of the first trimester, the State may not regulate a pregnant woman's abortion decision and its effectuation, which must be left to the judgment of the pregnant woman.
2. After the end of the first trimester and until the end of the second trimester, the State may regulate the pregnant woman's abortion decision and its effectuation only in ways that are reasonably related to the physical health of the pregnant woman.
3. After the end of the second trimester, the State may regulate or prohibit abortion, except when abortion is necessary, in the medical judgment of the woman's physician, to preserve the life or health of the pregnant woman.
Back to me now. In both the AG’s explanation and the text of the amendment itself, the language regarding the first trimester is cut and dried. The decision about an abortion is left up to the woman.
Same goes — in terms of clarity — for the third trimester, where the physician's judgement is the only one that matters.
But it’s the second trimester’s text and explanations that seem a bit muddled to me and call for some attention. An abortion during this period is not just up to the doctor. The state of South Dakota steps in. “The State may regulate or prohibit” the abortion decision, which will be allowed “only” if the decision is “reasonably related” to the physical health of the pregnant woman.
That word “reasonably” is a loaded one indeed. My physician acquaintance raised a concern that the language is vague and subject to differing interpretations of what is “reasonable.” Essentially, it gives the state the right to second guess a physician’s judgement and impose the state’s determination of whether or not the doctor’s decision to abort meets the standards of what is and what is not “reasonably related” to a woman’s physical health.
There are probably some situations where the objective elements leading up to the decision to abort are so clear as to be indisputable. But the use of the word “reasonably” acknowledges that there might be some subjectivity and differences of opinion on whether to proceed with the abortion. What’s reasonable to me may be hopelessly irrational to you, and vice versa. Here’s where medical opinions may clash, with this amendment ceding to the state the overruling opinion. In other words, the doctor may be in trouble unless clearance from the state precedes the decision to abort.
This puts the doctor and the patient in quite a fix, especially if there’s some urgency attached to the situation.
As the AG’s explanation notes, “judicial clarification of the amendment may be necessary,” but before that and even before election day, some clarification by the initiative’s proponents would be of some help as voters make their decisions on this.
John Tsitrian is a businessman and writer from the Black Hills. He was a weekly columnist for the Rapid City Journal for 20 years. His articles and commentary have also appeared in The Los Angeles Times, The Denver Post and The Omaha World-Herald. Tsitrian served in the Marines for three years (1966-69), including a 13-month tour of duty as a radioman in Vietnam. Reprint with permission.
