An Act to establish an individual's right to make autonomous decisions about the individual's reproductive health care, and to repeal provisions related to abortion.
Be it enacted by the Legislature of the State of South Dakota:
Section 1. That a NEW SECTION be added:
For purposes of this Act, the term "reproductive health care" means health care offered, arranged, or furnished for the purpose of preventing pregnancy, terminating a pregnancy, managing pregnancy loss, or improving maternal health and birth outcomes. The term includes abortion care, contraception, counseling regarding reproductive health care, maternity care, preconception care, and sterilization.
Section 2. That a NEW SECTION be added to chapter 34-23A:
Each individual may make autonomous decisions about the individual's own reproductive health, including a decision to use or refuse reproductive health care.
Any individual who becomes pregnant may continue the pregnancy and give birth or exercise the individual's right to have an abortion.
Nothing in this section extends independent rights under the laws of this state to a fertilized egg, an embryo, or a fetus.
Section 3. That a NEW SECTION be added to chapter 34-23A:
No individual may be denied the ability to engage in decision-making regarding the individual's own reproductive health or discriminated against for exercising that ability. This section applies to all individuals, including those who are in state custody, or under state control or supervision.
No individual may be prosecuted, punished, or otherwise deprived of the individual's rights for any act or omission occurring during the individual's pregnancy, if the predominant basis for the prosecution, punishment, or deprivation of rights is the potential, actual, or perceived impact on:
(1) The pregnancy or its outcomes; or
(2) The individual's health.
Any party aggrieved by a violation of this Act may file a civil lawsuit. Upon motion, a court shall award a prevailing plaintiff reasonable attorneys' fees and costs, including expert witness fees and other litigation expenses.
Section 4. That a NEW SECTION be added to chapter 34-23A:
A health care practitioner may provide abortion care in accordance with the practitioner's professional judgment and scope of practice. If the health care practitioner determines that there is fetal viability, the health care practitioner may provide abortion care only if, in the exercise of professional judgment, the practitioner determines that an abortion is necessary to protect the life or health of the pregnant patient.
Each health care practitioner shall report the performance of an abortion to the Department of Health, within ten days after the end of the month in which the abortion was performed. The department shall make the reporting forms available on its website. The information reported may not include the patient's name or any other identifying information.
Any report provided in accordance with this chapter is confidential and may be used only for statistical purposes. The department shall destroy all reports after two years.
Section 5. That 22-17-5.1 be REPEALED.
Any person who
administers to any pregnant female or who prescribes or procures for
any pregnant female any medicine, drug, or substance or uses or
employs any instrument or other means with intent thereby to procure
an abortion, unless there is appropriate and reasonable medical
judgment that performance of an abortion is necessary to preserve the
life of the pregnant female, is guilty of a Class 6 felony.
Section 6. That 22-17-5.2 be REPEALED.
A female who undergoes an
unlawful abortion, as set forth in 22-17-5.1,
may not be held criminally liable for the abortion.
Section 7. That 22-17-6 be REPEALED.
Any person who
intentionally kills a human fetus by causing an injury to its mother,
which is not authorized by chapter 34-23A,
is guilty of a Class 4 felony.
Section 8. That 22-17-13 be REPEALED.
A person is guilty of a
Class B felony if, with the intent to cause a pregnant mother to
undergo an abortion against her will, the person:
(1) Threatens to commit,
against the pregnant mother or any other person within the pregnant
mother's presence:
(a) Homicide, murder, or
manslaughter, under chapter 22-16;
(b) Aggravated assault,
under 22-18-1.1;
or
(c) Kidnapping, under
chapter 22-19;
and
(2) The threat results in
the death of the unborn human being, as defined under 34-23A-1.
A charge brought under
this section may be commenced at any time prior to the time the
victim attains age twenty-five or within seven years of the
commission of the crime, whichever is longer.
Section 9. That 22-17-13.1 be REPEALED.
A person is guilty of a
Class 5 felony if, with the intent to coerce a pregnant mother to
undergo an abortion against her will, the person threatens to commit,
against the pregnant mother or any other person within the pregnant
mother's presence:
(1) Homicide, murder, or
manslaughter, under chapter 22-16;
(2) Aggravated assault,
under 22-18-1.1;
or
(3) Kidnapping, under
chapter 22-19.
A charge brought under
this section may be commenced at any time prior to the time the
victim attains age twenty-five or within seven years of the
commission of the crime, whichever is longer.
Section 10. That 22-17-14 be REPEALED.
A person is guilty of a
Class 1 misdemeanor if the person:
(1) In any manner other
than that set forth in 22-17-13.1,
coerces, compels, or attempts to compel a pregnant woman to undergo
an abortion;
(2) Requires a pregnant
woman to agree to a provision that if she refuses to undergo an
abortion, it is a breach of a contract; or
(3) Requires a pregnant
woman to agree to a provision that results in her assuming any cost,
obligation, or responsibility for refusing to undergo an abortion.
A subsequent offense of
this section is a Class 6 felony.
Section 11. That 34-23A-1 be REPEALED.
Terms used in this
chapter mean:
(1) "Abortion,"
the intentional termination of the life of a human being in the
uterus;
(1A) "Abortion
facility," a place where abortions are performed;
(1B) "Department,"
the South Dakota Department of Health;
(2) "Fetus,"
the biological offspring, including the implanted embryo or unborn
child, of human parents;
(3) "Fertilization,"
that point in time when a male human sperm penetrates the zona
pellucida of a female human ovum;
(4) "Human being,"
an individual living member of the species of Homo sapiens, including
the unborn human being during the entire embryonic and fetal ages
from fertilization to full gestation;
(5) "Medical
emergency," any condition which, on the basis of the physician's
good faith clinical judgment, so complicates the medical condition of
a pregnant woman as to necessitate the immediate abortion of her
pregnancy to avert her death or for which a delay will create serious
risk of substantial and irreversible impairment of a major bodily
function;
(6) "Parent,"
one parent or guardian of the pregnant minor or the guardian or
conservator of the pregnant woman;
(7) "Physician,"
a person licensed under the provisions of chapter 36-4
or a physician practicing medicine or osteopathy in the employ of the
government of the United States or of this state;
(8) "Probable
gestational age of the unborn child," what, in the judgment of
the physician, will with reasonable probability be the gestational
age of the unborn child at the time the abortion is planned to be
performed.
Section 12. That 34-23A-1.1 be REPEALED.
For the purposes of this
chapter, an attempt to perform an abortion is an act or omission
that, under the circumstances as the actor believes them to be,
constitutes a substantial step in a course of conduct planned to
culminate in the performance of an abortion in South Dakota.
Section 13. That 34-23A-1.2 be REPEALED.
The Legislature finds
that all abortions, whether surgically or chemically induced,
terminate the life of a whole, separate, unique, living human being.
Section 14. That 34-23A-1.3 be REPEALED.
The Legislature finds
that there is an existing relationship between a pregnant woman and
her unborn child during the entire period of gestation.
Section 15. That 34-23A-1.4 be REPEALED.
The Legislature finds
that procedures terminating the life of an unborn child impose risks
to the life and health of the pregnant woman. The Legislature further
finds that a woman seeking to terminate the life of her unborn child
may be subject to pressures which can cause an emotional crisis,
undue reliance on the advice of others, clouded judgment, and a
willingness to violate conscience to avoid those pressures. The
Legislature therefore finds that great care should be taken to
provide a woman seeking to terminate the life of her unborn child and
her own constitutionally protected interest in her relationship with
her child with complete and accurate information and adequate time to
understand and consider that information in order to make a fully
informed and voluntary consent to the termination of either or both.
Section 16. That 34-23A-1.5 be REPEALED.
The Legislature finds
that pregnant women contemplating the termination of their right to
their relationship with their unborn children, including women
contemplating such termination by an abortion procedure, are faced
with making a profound decision most often under stress and pressures
from circumstances and from other persons, and that there exists a
need for special protection of the rights of such pregnant women, and
that the State of South Dakota has a compelling interest in providing
such protection.
Section 17. That 34-23A-1.6 be REPEALED.
The Legislature finds
that, through the common law, the courts of the State of South Dakota
have imposed a standard of practice in the health care profession
that, except in exceptional circumstances, requires physicians and
other health care practitioners to provide patients with such facts
about the nature of any proposed course of treatment, the risks of
the proposed course of treatment, the alternatives to the proposed
course, including any risks that would be applicable to any
alternatives, as a reasonable patient would consider significant to
the decision of whether to undergo the proposed course of treatment.
Section 18. That 34-23A-1.7 be REPEALED.
The South Dakota common
law cause of action for medical malpractice informed consent claims
based upon the reasonable patient standard is reaffirmed and is
hereby expressly declared to apply to all abortion procedures. The
duty of a physician to disclose all facts about the nature of the
procedure, the risks of the procedure, and the alternatives to the
procedure that a reasonable patient would consider significant to her
decision of whether to undergo or forego the procedure applies to all
abortions. Nothing in 34-23A-1,
34-23A-1.2
to 34-23A-1.7,
inclusive, 34-23A-10.1,
and 34-23A-10.3
may be construed to render any of the requirements otherwise imposed
by common law inapplicable to abortion procedures or diminish the
nature or the extent of those requirements. The disclosure
requirements expressly set forth in 34-23A-1,
34-23A-1.2
to 34-23A-1.7,
inclusive, 34-23A-10.1,
and 34-23A-10.3
are an express clarification of, and are in addition to, those common
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