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Thursday, February 23, 2006

Unpacking "The Women's Health and Human Life Protection Act"

FOR AN ACT ENTITLED, An Act to establish certain legislative findings, to reinstate the prohibition against certain acts causing the termination of an unborn human life, to prescribe a penalty therefor, and to provide for the implementation of such provisions under certain circumstances.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Welcome to the South Dakota Legal edition of the pixie party, where we read the legislation so that you don't have to. Remember, pixies, I am not a lawyer. But who says a housewife can't read statutes? No one yet. But I'm sure South Dakota is working on it. So let's move on without delay.

Section 1. The Legislature accepts and concurs with the conclusion of the South Dakota Task Force to Study Abortion, based upon written materials, scientific studies, and testimony of witnesses presented to the task force, that life begins at the time of conception, a conclusion confirmed by scientific advances since the 1973 decision of Roe v. Wade, including the fact that each human being is totally unique immediately at fertilization. Moreover, the Legislature finds, based upon the conclusions of the South Dakota Task Force to Study Abortion, and in recognition of the technological advances and medical experience and body of knowledge about abortions produced and made available since the 1973 decision of Roe v. Wade, that to fully protect the rights, interests, and health of the pregnant mother, the rights, interest, and life of her unborn child, and the mother's fundamental natural intrinsic right to a relationship with her child, abortions in South Dakota should be prohibited. Moreover, the Legislature finds that the guarantee of due process of law under the Constitution of South Dakota applies equally to born and unborn human beings, and that under the Constitution of South Dakota, a pregnant mother and her unborn child, each possess a natural and inalienable right to life.
Life begins at the time of conception. Why, one wonders, would the good people of South Dakota choose to draw an arbitrary line in the sand at conception? Are not eggs and sperm alive? They are cells formed by living human bodies. Spermicides could not kill sperm if the sperm were not alive in the first place, right? Look at those sperm swimming! How can you witness that miracle of life and not declare, as I would, that every sperm is sacred?

We must sadly accept that South Dakota has refused to take action to protect the billions of sperm whose lives are tragically cut short, who are deprived of what could well be considered their inalienable right to unite with an egg. Luckily South Dakota has agreed that it is of the utmost importance to fully protect "the mother's fundamental natural intrinsic right to a relationship with her child." How shall it do this? By outlawing adoption, unless the adoption process can guarantee the preservation of this fundamental natural intrinsic right? No, you silly housewife! The mother only has a fundamental natural intrinsic right to a relationship with her child while it is lodged inside her body. After that, the "natural parents of an adopted child shall retain no rights or privileges to have visitation or other post-adoption contact with the child" except that circuit courts have "the option to order an open adoption or post-termination visitation." That, however, is "an extraordinary remedy and may be exercised only by the adoptive parents when in the child's best interests."

But, I sputter, isn't it a fundamental, natural, and intrinsic right for a mother to have a relationship with her child? Didn't they just say that? What did I miss?

You pat me gently on the head and remind me that this is why silly housewives are not advised to dabble in the political and scientific process unless accompanied by a strong man with a clear head. Well, duly noted. But I just can't help wanting to continue reading the statute. Call it my feminine weakness.

Section 2. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:
No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being. No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being.
Any violation of this section is a Class 5 felony.
Yes, OK. You had a feeling that this was where we were heading. Do you mind if we skip ahead for a moment to define our terms? I knew you'd understand.
Section 5. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:
Terms used in this Act mean:
(1) "Pregnant," the human female reproductive condition, of having a living unborn human being within her body throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and child birth;
(2) "Unborn human being," an individual living member of the species, homo sapiens, throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and childbirth;
(3) "Fertilization," that point in time when a male human sperm penetrates the zona pellucida of a female human ovum.

Oh, dear. That was a lot of information for my poor head to absorb all at once. Let's take it little by little. Pregnant is defined as "having a living unborn human being" within one's body. "Unborn human being" is defined as "an individual living member of the species... from fertilization to full gestation and childbirth." And fertilization is defined as that moment when "a male human sperm penetrates the zona pellucida of a female human ovum." So the state of being pregnant exists from the very moment that the sperm and the egg get it on, so to speak.

Now let's go back to section 2. "No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being." Now, oh dear, thinking is very hard, but it appears to my wee little head that this more or less outlaws any type of emergency contraception. By defining pregnancy to begin at the moment of fertilization, rather than the more common medical definition involving measurable changes in the woman's body indicating that a fertilized egg has implanted in the uterine lining, the South Dakota legislature has arguably codified the position that emergency contraception methods are abortifacients that terminate "the life of an unborn human being" by possibly preventing the implantation of a fertilized egg.

Now, Phantom, you say, soothingly. Don't go overboard. Why, haven't you read section 3?
Section 3. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:
Nothing in section 2 of this Act may be construed to prohibit the sale, use, prescription, or administration of a contraceptive measure, drug or chemical, if it is administered prior to the time when a pregnancy could be determined through conventional medical testing and if the contraceptive measure is sold, used, prescribed, or administered in accordance with manufacturer instructions.
Right, but how is "contraceptive" defined? Oh, that's right -- it isn't. But if we can assume that a contraceptive is defined as something that prevents conception, and conception is defined as fertilization, then anything that could potentially interfere with the process after that fertilization is arguably outside the allowed category of "contraceptive."

But let's talk some more about this allowed category. Does this law actually protect your access to birth control pills? What if a pharmacist feels that you, you silly housewife (college student/ waitress/ secretary/ teacher/ cattle rancher) may want that prescription for birth control pills filled for nefarious purposes? You could want them for use as a form of emergency contraception, which the great state of South Dakota finds may terminate an unborn human being. Can you promise that you won't use them in any way not "in accordance with manufacturer instructions?" No? Because I, as a pharmacist, might not want to risk committing a Class 5 felony by selling them to you. (Assuming that I had the brains to become a pharmacist, of course. You all know that I'm just a housewife!)

And let's take a good look at the other birth control safety clause here, "if it is administered prior to the time when a pregnancy could be determined through conventional medical testing." Are we talking a home pregnancy test within a few days (give or take) of your missed period? Or are we talking a blood test that could detect a pregnancy by the second week after conception? Will it now be against the law in South Dakota for your partner to use a condom in that week or two between when you could have gone to the doctor for a sensitive test, and when you actually missed your period and thought to go buy an at-home pregnancy test? Let's just hope you're using those condoms in accordance with manufacturer's instructions. Then maybe the judge will give your partner some benefit of the doubt. But, you, the anxious keeper of what appears to be a state-owned uterus, should not worry your pretty little head. The state of South Dakota does indeed want to protect, not punish you. That's why section 4 says
Nothing in this Act may be construed to subject the pregnant mother upon whom any abortion is performed or attempted to any criminal conviction and penalty.

Phew! So if you are raped in South Dakota, you will have to bear the child, but if you are walking down the street and are suddenly grabbed from behind by a rampaging abortionist, you will not be held to blame, poor dear.

Oh, did I mention that there's no exception for rape, incest, or the health of the mother? You might assume that's all taken care of, given that "Women's Health" is part of this law's billing. Um, no. Section 4 does allow for one exception:
No licensed physician who performs a medical procedure designed or intended to prevent the death of a pregnant mother is guilty of violating section 2 of this Act.
The DEATH of a pregnant woman. This is something very different than preserving the health of a pregnant woman. If a woman, as a result of her pregnancy, was to end up in, say, a persistent vegetative state, well, she hasn't died, so no abortion would be allowed to prevent her from ending up that way. Considerate, isn't it?

Well, friends, that's about all that my little brain can take from the The Women's Health and Human Life Protection Act today. Maybe tomorrow I'll get around to the reasons why your IUD may soon be considered an enemy of the state in South Dakota. Or maybe I'll just start throwing myself at the mercy of my Canadian friends. It's never too early to introduce Baby Blue to a nice Canadian potential spouse. And keep her the hell away from anyone from South Dakota.

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