A recently released state-produced video intended to help doctors comply with South Dakota’s strict abortion law is not specific enough to prevent health care professionals from violating the rules and exposing themselves to prosecution, an abortion rights group said Friday.
But the video’s proponents, who obliged by the legislature and funded by taxpayers, said the approximately six-minute video What was posted on YouTube on Wednesday is exactly what lawmakers demanded and provides doctors with clear guidance.
South Dakota declared outlaws abortion as a crime, except to save the life of the mother. But a ballot proposal 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 won in all seven states with abortion-related ballot measures since the fall of Roe v. Wade in 2022.
“I think it would be unwise for any physician to use this video as a guide to navigate the waters of our post-abortion medical landscape,” said Dr. Marvin Buehner, a recently retired, longtime OB/GYN. He said the video provides no guidance or clarity and does not help physicians practice medicine in South Dakota.
In the video, Health Minister Melissa Magstadt talks about the law and a “non-exhaustive list of conditions that may make it necessary to terminate a pregnancy before viability.”
“The key for a physician to ensure that he or she is operating within the bounds of the law is to document his or her decision-making process and how that led to the course of treatment he or she recommended,” she said.
The video contains a disclaimer stating that the video is not legal advice. Any legal questions should be directed to an attorney and the video and its contents are not legally binding.
Supporters of the South Dakota measure say the video is a political cover for anti-abortion opponents to the voting measure. They also said the video contains exceptions and words that are not in the law. The secretary’s video statements are meaningless, they said, because she has no legal authority and because of the disclaimer.
“How can doctors rely on this if they’re being sued for something that the video suggests they can do, and they can’t use the video to defend themselves? It’s an absolute joke,” said Nancy Turbak Berry, a lawyer and former Democratic lawmaker who sponsored the measure. She and Buehner held a news conference Friday about the video.
She said she feels the state is embarrassed or concerned about the implications of the abortion law because the minister’s statements, “apparently an attempt to soften the edges of our extreme abortion ban,” suggest things that no prosecutor would agree are legal.
The video notes that the health department, the attorney general’s office, the American Association of Pro-Life OB/GYNs, and several OB/GYNs practicing in South Dakota were among those working with the company.
Republican Rep. Taylor Rehfeldt, the bill’s lead sponsor, said she believes the video provides clear guidance for health care providers. She called the legal disclaimer “a standard piece of equipment.”
“The purpose of the video is not to provide legal advice, but to ensure that healthcare 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 a “do-nothing law” that won’t help anyone or even require anyone to watch it, said South Dakota ACLU Advocacy Manager Samantha Chapman.
“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 trying to survive through South Dakota’s draconian abortion ban,” she said.
Abortion laws in other states have been criticized as unclear. Earlier this year, the Texas Supreme Court maintained the state’s abortion law and ruled against opponents who said the law is too vague about medical exceptions.
In North Dakota, the former only abortion clinic in the state and several doctors who challenging The state argues that the abortion ban is unconstitutionally vague regarding exceptions.
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Dura reported from Bismarck, North Dakota.
