Women in South Dakota who are seeking a medication abortion will face additional restrictions later this month after state lawmakers approved a new rule from the state’s health department.
Current state law allows for the medical abortion process to begin 72 hours “after the physician physically and personally meets with the pregnant mother,” except in medical emergencies, and usually only required one more visit to a licensed facility to receive the necessary drugs for the process.
But on Thursday, state lawmakers on a rules review committee approved the South Dakota Department of Health’s rule requiring that women receive both drugs used in a medication abortion — mifepristone and misoprostol — in person at a licensed abortion facility.
The rule means South Dakota will be the first state to require a visit to obtain the misoprostol, according to Guttmacher Institute state policy analyst Elizabeth Nash.
A medication abortion, also called a medical abortion, is a nonsurgical procedure effective until about 10 weeks into a pregnancy. It involves taking mifepristone and misoprostol one or two days apart.
Typically, women are given both drugs in the same visit to their doctor or a clinic. They take the mifepristone pill at the clinic and are instructed to take the misoprostol pill at home a day or two later.
Under the new regulation, women in South Dakota will now effectively be required to make four visits to a licensed abortion facility for a medication abortion.
The rule comes after the Biden administration temporarily relaxed federal regulations on medication abortion in April, removing the requirement that mifepristone be dispensed in person during the Covid-19 pandemic.
The move prompted South Dakota and other conservative states to take steps to counteract the federal government.
South Dakota Gov. Kristi Noem, a Republican, signed an executive order in September directing the state’s Department of Health to draft rules to ensure the drugs distributed in the state could not be sent via mail, among other restrictions.
In December, the FDA permanently lifted the requirement that the first drug be dispensed in person, instead allowing pills to be sent by mail. The agency also started requiring pharmacies that dispense the drug be certified.
After a public hearing last month and a committee hearing that resumed Thursday, the South Dakota legislature’s Republican-majority Interim Rules Review Committee voted to pass the rule requiring in-person distribution of both medications.
Current South Dakota law requires physicians to obtain “a voluntary and informed written consent” from a pregnant woman for an abortion, with exceptions for medical emergencies.
Under the new rule, three days after a pregnant woman gives the informed consent for a medication abortion, the woman can return to the clinic to receive the first drug, mifepristone. She is only allowed to take the medications up to nine weeks after conception.
But before dispensing the drug, according to the new regulation, a physician has to inform the woman that should she change her mind and decide to carry the baby to term, it’s possible to reverse the effects of the mifepristone.
If she does take that medication, she must wait 24 to 72 hours later and return a third time to the clinic for the second drug, misoprostol, to be dispensed in person.
Abortion facility staff then need to schedule a follow-up appointment with the woman for 14 days after taking the medication.
The abortion facility also must monitor the patient and report to the Department of Health any complications that require medical follow-ups, what the required follow-up care was, the facility where the follow-up appointment was held, and if the pregnant woman was sex-trafficked.
Ali Tornow, a staff attorney for the Department of Health, argued in Thursday’s hearing that the “purpose of this rule is to protect the health and safety of women in South Dakota by requiring in-person dispensing of both medications.”
Other proponents of the rule, including several South Dakota physicians, testified that removing in-person visits could lead to life-threatening health complications for pregnant women.
Planned Parenthood North Central States and the American Civil Liberties Union of South Dakota slammed the new regulation, saying it mandates another “unnecessary” visit to the clinic.
Dr. Sarah Traxler, the chief medical officer for Planned Parenthood North Central States, testified during Thursday’s hearing that the rule is “not medically necessary” and may instead prevent women “from taking the second medication, thereby exposing them to increased risk.”
Traxler argued that for patients who spend hours driving to reach the clinic, an extra trip is an “insurmountable barrier to care,” and for some women, “the unpredictability of everyday life may ultimately prevent patients from returning to the clinic to receive the misoprostol.”
Jett Jonelis, the ACLU of South Dakota’s advocacy manager, said in a statement provided to CNN that mandates like South Dakota’s “represent dangerous political interference and compromise patient care and safety.”
“These restrictions violate patients’ rights to liberty, privacy and equal protection as guaranteed by the U.S. Constitution by imposing significant burdens on abortion access without proof of a valid medical justification,” Jonelis said.
The American College of Obstetricians and Gynecologists (ACOG) and several other medical associations have advocated for the removal of federal restrictions on how the drugs are administered.
The restrictions “do not make the care safer, are not based on medical evidence or need, and create barriers to clinician and patient access to medication abortion,” ACOG says on its website.
But “limited available evidence suggests that use of mifepristone alone without subsequent administration of misoprostol may be associated with an increased risk of hemorrhage,” the group said.
According to data the FDA has collected since the drug’s approval in 2000, of the 4.9 million women who have taken mifepristone for a medical abortion, 26 have died — a mortality rate of less than 0.0001%.
Governor moves to make new rule permanent
Noem “plans to work with the South Dakota legislature to make these and other protocols permanent,” her office said in a press release. The upcoming session kicks off Tuesday.
“I look forward to the day when the life of every unborn child is protected in South Dakota,” the governor said in a statement.
South Dakota has a number of restrictions on access to abortion, including banning abortion after 22 weeks of pregnancy with some exceptions.
It’s also one of 19 states that require a physician providing a medication abortion to be physically present during it, effectively prohibiting telemedicine to prescribe abortion medication, according to the Guttmacher Institute.
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