South Dakota abortion rights advocates criticize state abortion law video

An abortion rights advocacy group said Friday that a recently released state-produced video intended to help doctors comply with South Dakota’s strict abortion law does not provide enough information to ensure health care workers do not violate the law and risk prosecution.

But supporters of the video, which was commissioned by the legislature and funded by taxpayers, say the roughly six-minute-long video posted on YouTube Wednesday is exactly what lawmakers wanted and provides clear guidance for doctors.

South Dakota criminalizes abortion unless it is to save the mother’s life. But the ballot measure aims to add abortion rights to the state constitution — it is one of nine states that will vote on similar measures in November. The abortion-rights side has won all seven states that have voted on abortion-related measures since Roe v. Wade fell in 2022.

“I think it would be reckless for a doctor to use this film as a guide to navigating the waters of our post-abortion medical landscape,” said Dr. Marvin Buehner, a recently retired, longtime obstetrician-gynecologist. He said the film offers no guidance or clarity and does not help doctors practice medicine in South Dakota.

In the video, Department of Health Secretary Melissa Magstadt talks about the law and the “non-exhaustive list of conditions that may require termination of pregnancy before it is viable outside the womb.”

“The key for a doctor to be sure they are following the law is to document the decision-making process and how it led to the recommended course of treatment,” she said.

The video contains a disclaimer stating that the video does not constitute legal advice, any legal questions should be directed to a lawyer, and that the video and its content are not legally binding.

Supporters of the South Dakota measure say the video is a political cover for anti-abortion voters. They also said the video contains a list of exceptions and language that is not in the law. They argue the secretary’s statements in the video are nonsensical because she has no legal authority and because of the disclaimer.

“How can doctors rely on this when they are being prosecuted for doing something that the video suggests they can’t use the video in their defense? It’s an absolute joke,” said Nancy Turbak Berry, a lawyer and former Democratic lawmaker who supports the bill. She and Buehner held a news conference Friday about the video.

She said she felt embarrassed or worried about the abortion bill’s implications because the secretary’s statements, “apparently intended to soften certain shortcomings in our radical abortion ban,” suggested things that no prosecutor would consider legal.

The video notes that the organization’s collaborators included the state health department, the state attorney general’s office, the American Society of Pro-Life Obstetricians and Gynecologists and several obstetricians and gynecologists practicing in South Dakota.

Republican state Rep. Taylor Rehfeldt, the bill’s lead sponsor, said she believes the film provides clear guidance for health care providers. She called the legal disclaimer a “standard feature.”

“The purpose of the video is not to provide legal advice, but to ensure that physicians have a clear, step-by-step process for making medical decisions in these critical situations,” she explained in a text message.

The South Dakota ACLU opposed her bill. The video comes from a “do nothing law” that won’t help anyone or even require anyone to watch it, said Samantha Chapman, advocacy manager for the South Dakota ACLU.

“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 South Dakota’s draconian abortion ban,” she said.

Abortion laws in other states have been criticized for being vague. Earlier this year, the Texas Supreme Court upheld the state’s abortion law, ruling against opponents who argued the law was too vague on medical exemptions.

In North Dakota, the state’s former sole abortion clinic and several doctors challenging the state’s abortion ban say the law is unconstitutionally vague on exceptions.