Physicians feel ‘trapped’ by SD’s abortion trigger law. They’re hoping to change it.

A wave of dread washed over Laura Hoefert as she held the pregnancy test in her hands.

All she could think about was the two pregnancies she’d already lost and her fear that she’d lose this one too.

That was two months ago.

Hoefert, a family physician serving in a rural eastern South Dakota community, knows the risk of being pregnant in the state after the Dobbs decision, in which the U.S. Supreme Court overruled Roe v. Wade last summer, and the state trigger law that took effect immediately afterward. Under that state law, abortion is only legal when “there is appropriate and reasonable medical judgment that performance of an abortion is necessary to preserve the life of the pregnant female.”

That statute makes some physicians like Hoefert pause. Even if they know, medically, that continuing a pregnancy could lead to risks for the health or life of the mother, would that hold up in court? Or would they be charged with a felony for trying to save their patient?

A few weeks later, when she started to miscarry, Hoefert accepted it. But then she kept bleeding; she worried she had an ectopic pregnancy, a rare condition where the egg is fertilized outside of the uterus, leading to a rupture and life-threatening internal bleeding.

Her professional worry collided with her personal life: Who would help her?

“I was terrified that if something happens there’s nowhere to go for help and I potentially can’t be referred either,” Hoefert said. Her bleeding eventually went away and she did not have to seek medical care, but the scare has stuck with her.

“Going forward, it’s something my partner and I have to decide for ourselves. Having children is important to him, but from the standpoint of being female in our state, it is something really terrifying,” she said.

Medical threats to pregnant women

Hemorrhaging during miscarriages and ectopic pregnancies aren’t the only risks for pregnant women in South Dakota — or the only reason why a wanted pregnancy is terminated.

It can happen when a woman needs treatment for cancer, epilepsy, kidney disease, or another chronic illness that can’t be treated without risking the baby’s life, when a mother’s water breaks and she gets an infection, or when severe preeclampsia, or high blood pressure during pregnancy, threatens her life.

It can happen when a woman who has struggled with infertility for years finds out her miracle child’s brain isn’t developing and won’t survive more than a few hours after delivery.

While each instance is rare on its own, the risk overall of a life-threatening development during pregnancy happens “often enough,” said Sioux Falls physician Erica Schipper — any pregnancy is a risk. The Centers for Disease Control and Prevention says about 700 women die from pregnancy-related complications each year in the U.S., and the majority of those deaths are preventable.

“It is always more dangerous to be pregnant than not to be pregnant,” Schipper said, who is a former chair of the South Dakota Chapter of American College of Obstetricians and Gynecologists.

There are no exceptions for the long term health of the mother in South Dakota’s current abortion law, Schipper said. So, legally, performing an abortion to “preserve the life” of the mother could mean it only applies to when her life is actively in danger, as though she’s bleeding out in the emergency room from miscarriage hemorrhaging.

Even then, a doctor might fatally pause.

“It’s impossible to itemize every situation where ending a pregnancy might be necessary to protect the health of the mother, and we shouldn’t have to demonstrate evidence of imminent death to care for these patients without fear of a felony charge,” Schipper said.

“These patients and families deserve dignity to determine when and how they’ll manage their own complications rather than being told what to do by people who don’t have medical knowledge and people they’ve never met,” she added.

Attempts to define health & life of the mother exception

House Assistant Majority Leader Taylor Rehfeldt introduced a bill during the 2023 legislative session that would have redefined when physicians can intervene to end a pregnancy, hoping to clarify the issue for physicians. But she requested a committee table it because she didn’t believe there was enough support to pass the bill — mostly due to opposition from the anti-abortion group South Dakota Right to Life.

A second, last-minute attempt to clarify the definition by Sen. Erin Tobin, R-Winner, was also halted later in the session. She asked the group’s executive director, Dale Bartscher, during a committee hearing about clarifying the health of the mother exception in the future.

“Right to Life definitely will continue to collaborate with anyone on issues of protection of the mother and the baby in the mother’s womb,” Bartscher said.

“Wonderful,” Tobin responded. “It seems like it’s a very high priority in this statement. I’ll be expecting further work on that.”

Rehfeldt has vowed to bring the bill back to the Legislature in 2024 — which will likely be months before South Dakotans vote on whether to amend the state constitution to allow abortions in the first trimester.

The amendment – which petitioners are circulating now, in an attempt to get it on the ballot – would allow abortions in the first trimester for any reason, in the second trimester when “reasonably related” to the physical health of the mother, and in the third trimester only when an abortion is “necessary to preserve the life or physical or emotional health of the pregnant woman.”

Rehfeldt, who works as a nurse, is in the midst of her own high-risk pregnancy, stemming from complications from a stroke she suffered in 2014. She plans to take time this summer and while on maternity leave to educate fellow lawmakers about the risks associated with pregnancy.

“There’s still an appetite to figure this out and come together for a solution,” Rehfeldt said.

In a survey conducted by The SDSU Poll in 2022, the majority of the survey’s 565 respondents indicated they support abortion in the case of “health of mother” — nearly 85%.

“We have to listen to the general population and what they think is reasonable,” Rehfeldt said. “I believe the general population believes the life of the mother is and always should be a priority.”

But “there is a significant mountain to climb,” she added. Rehfledt hopes concerned physicians will help explain the difficulties navigating South Dakota’s current abortion law to legislators and the public.

Pro-life physicians say the law is ‘adequate’

Bartscher told South Dakota Searchlight that his organization hasn’t “heard from any South Dakota doctors” who want clarification of the trigger law, but that they have heard from other doctors who say they can function within the guidelines.

“South Dakota Right to Life’s commitment has always been and will be to work with legislators and the Governor’s Office to pass laws that protect the unborn and support women and families who are experiencing unplanned pregnancies,” Bartscher said in a statement. “We will champion a respect for the dignity of human life at all stages of life – from conception to natural death.”

State law defines abortion as “the intentional termination of the life of a human being in the uterus,” which encompasses all reasons for termination: elective or medical reasons.

And according to Glenn Ridder — a family physician and medical director of Sioux Falls-based pregnancy help center, the Alpha Center — medical intervention meant to save the life or health of the mother, even if it poses a threat to the fetus’ life, would be legal by that existing definition. That’s because if the baby dies because of treatment — either to treat cancer or severe seizures or infection or other medical issues — that is a secondary effect of the treatment and isn’t “intentional.”

However, South Dakota’s top law enforcement officer Attorney General Marty Jackley did not offer an interpretation of abortion exception. That wouldn’t be determined until a case appears in court.

“It is not appropriate for the Attorney General’s Office to address hypotheticals concerning the application of the abortion exception for the life of the mother,” Jackley told South Dakota Searchlight in a statement.

Chamberlain-based OB-GYN Patti Giebink said she believes the current law is “adequate,” but she also expressed a willingness to amend it. The “Unexpected Choice” book author is a licensed physician, but she does not currently practice as she’s promoting her book and attending speaking events.

If doctors have done “everything possible” to ensure a pregnancy is nonviable and one that’s life-threatening to the mother, Giebink said, then they shouldn’t have to worry about terminating it.

“If some OB doctors need reassurance that what they’re doing is ethical, then fine,” Giebink said, “let’s put some doctors together to answer that question of how we can better define the life of the mother, but it’ll never be all inclusive.”

Feeling ‘trapped’ by trigger law

It’s difficult to ask women who have terminated pregnancies for medical reasons to share their stories and educate others, Rehfeldt said. That’s because there’s a stigma and “unnecessary shame” surrounding the conversation.

Hoefert agreed.

Although she’s lost all three of her pregnancies, she and her partner will still celebrate Mother’s Day and Father’s Day each year.

She may never have biological children to cart to soccer practice or introduce to coworkers, but there is still value in her life outside of motherhood — in the children she works with, the babies she brings into the world and the people she helps on a daily basis as a doctor.

“I can’t imagine what it would be like had I been trapped without any control of what would happen to me, my child and the rest of my life,” Hoefert said. “To have no control over that decision is absolutely terrifying.”

The intervention of governmental officials makes it feel like “there’s more than just you and the patient in the exam room,” Schipper said. She worries that the current law will impact future doctors’ choices to practice medicine in the state.

“The critical point,” Schipper said, “is that not all pregnancies are uncomplicated and that health care decisions in these situations should be made by those patients in consultation with their doctors and their own families.”

This article originally appeared on Sioux Falls Argus Leader: Physicians feel ‘trapped’ by SD’s abortion trigger law. They’re hoping to change it.