Bad abortion laws in South Dakota are a lot like a game of Whac-a-mole. You knock one down and another one instantly pops up.
You probably heard about the latest attempt to ban abortion via referendum in South Dakota, which went down to defeat on November 4. I’m willing to bet you’re less familiar with another batshit abortion law that was passed there in 2005 and finally went into effect last July after a judge lifted an injunction against it. I only heard about it now through my nerdy reading habits.
According to the latest New England Journal of Medicine, South Dakota’s new law mandates that
physicians in South Dakota must tell any woman seeking an abortion that she is terminating the life of “a whole, separate, unique, living human being” with whom she has an “existing relationship,” that her relationship “enjoys protection under the United States Constitution and under the laws of South Dakota,” and that abortion terminates that relationship along with “her existing constitutional rights with regards to that relationship.” …
The law also requires that doctors give pregnant women a description of medical and “statistically significant” risks of abortion, among which it includes depression and other psychological distress, suicide, danger to subsequent pregnancies, and death. Physicians must tell women the approximate gestational age of the fetus and describe its state of development.
Information is good, right? But this isn’t information, it’s propaganda.
Take, for instance, the law’s characterization of the fetus. Since when is a fetus a “separate” being? I’ll gladly grant the rest – that it’s unique and human and alive – but “separate” only applies once the fetus is born. Until then, it’s intimately tethered to a woman by its umbilical cord. This is an elegant and wondrous system. But separate, it’s not.
The only reason this law can claim “separate” status for the fetus is that we’ve grown used to seeing disembodied fetuses. Intrauterine photography is pretty amazing. It’s also deeply deceptive, because it routinely effaces not just the womb but the woman – a woman who most assuredly is a separate, unique human being. (See Barbara Duden and Valerie Hartouni for more sophisticated versions of this argument.) When we see a fetus floating through what appears to be a starless universe, it’s very easy to imagine that the fetus is an autonomous person – and to forget about the personhood of the woman whose universe it inhabits.
The legally protected “relationship” between woman and fetus that this law posits is entirely nebulous, as the NEMJ argues. The law’s vagueness opens up doctors to second-degree misdemeanor charges, which of course is the editorialists’ main concern. The NEMJ doesn’t directly address the impact of this “relationship” language on women, though it does make a connection to the new paternalism espoused by pro-life activists and enshrined in Gonzales v. Carhart:
In the U.S. Supreme Court’s most recent abortion case in 2007, Gonzales v. Carhart, Justice Anthony Kennedy noted that “some women come to regret their choice to abort the infant life they once created and sustained.” Had these women been better informed, he suggested, they might have chosen not to abort and thus been spared the “grief more anguished and sorrow more profound” caused by discovering how their pregnancy had been terminated. Many commentators interpreted Kennedy’s words as an invitation to state legislatures to amend abortion statutes to add informed-consent requirements. South Dakota appears to have answered this invitation.
This language affects far more than just the doct0r-patient relationship. It shapes the cultural image of the women who are unhappily pregnant. By using terms like “right” and “protection,” the new law casts these women as the victims of abortion – as mere pawns manipulated by husbands, lovers, and doctors. This has been a tactic embraced by anti-abortion activists for the past several years. Since it bore fruit in Carhart v. Gonzales, we can expect the victimization thesis increasingly to permeate anti-abortion rhetoric.
At the same time, the “relationship” palaver imputes a mother-child relationship where none exists – not yet and maybe not ever. If a woman rejects the victimization frame and fully owns her decision to terminate her pregnancy, this instantly triggers the bad mother frame. This language is an attempt to invoke mother guilt, pure and simple.
Even the “medical” information is a load of ideological crap:
The purported increased risks of psychological distress, depression, and suicide that physicians are required to warn women about are not supported by the bulk of the scientific literature. By requiring physicians to deliver such misinformation and discouraging them from providing alternative accurate information, the statute forces physicians to violate their obligation to solicit truly informed consent …
Yep. And it’s not just psychological risks that the law fabricates; it also suggests that abortion is physically perilous. In fact, the opposite is true. A woman is over twenty times more likely to die from a full-term pregnancy than from a first-trimester abortion, according to the ACLU. (For more on the strong safety record of early abortions, see the Guttmacher Institute’s Fact Sheet on Induced Abortion in the United States.)
Of course, medical and legal facts and logic had nothing to do with the framing of this law. It’s an attempt to intimidate women. From that angle, South Dakota’s consent requirements are sadly incomplete. Why not round out this “information” with the risk of a vengeful god casting thunderbolts at women who abort?