South Dakota. South Dakota Codified Laws.

 

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CHAPTER 15-15A

UNIFIED JUDICIAL SYSTEM COURT RECORDS RULE

 

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15-15A-7.   Court records excluded from public access. The following information in a court record is not accessible to the public:

             (1)      Information that is not to be accessible to the public pursuant to federal law;

             (2)      Information that is not to be accessible to the public pursuant to state law, court rule or case law as follows;

             (3)      Examples of such state laws, court rules, or case law follow. Note this may not be a complete listing and the public and court staff are directed to consult state law, court rules or case law. Note also that additional documents are listed below that may not be within court records but are related to the court system; the public and court staff should be aware of access rules relating to these documents.

             (a)      Abortion records (closed);  34-23A-7.1

             (b)      Abuse and neglect files and records (closed, with statutory exceptions);  26-8A-13

             (c)      Adoption files and adoption court records (closed, with statutory exceptions);  25-6-15 through 25-6-15.3

             (d)      Affidavit filed in support of search warrant (sealed if so ordered by court, see statutory directives);  23A-35-4.1

             (e)      Attorney discipline records (closed until formal complaint has been filed with Supreme Court by the State Bar Association's Disciplinary Board or Attorney General, accused attorney requests matter be public, or investigation is premised on accused attorney's conviction of a crime);  16-19-99

             (f)      Civil case filing statements (closed);  15-6-5(h);

             (g)      Coroner's inquest (closed until after arrest directed if inquisition finds criminal involvement with death);  23-14-12

             (h)      Custody or visitation dispute mediation proceedings pursuant to  25-4-60 (closed, inadmissible into evidence)

             (i)      Discovery material (closed unless admitted into evidence by court)  15-6-26(c); 15-6-5(g)

             (j)      Domestic abuse victim's location (closed, with statutory exception);  25-10-39

             (k)      Employment examination or performance appraisal records maintained by Bureau of Personnel (closed);  1-27-1

             (l)      Grand jury proceedings (closed with statutory exceptions);  23A-5-16

             (m)      Guardianships and conservatorships (closed with statutory exceptions);  29A-5- 311

             (n)      Involuntary commitment for alcohol and drug abuse (petition, application, report to circuit court and court's protective custody order sealed; law enforcement or prosecutor may petition the court to examine these documents for limited purpose);  34-20A-70.2

             (o)      Judicial disciplinary proceedings (closed until Judicial Qualifications Commission files its recommendation to Supreme Court, accused judge requests matter be public, or investigation is premised on accused judge's conviction of either a felony crime or one involving moral turpitude); ch. 16-1A, Appx. III(1)

             (p)      Juvenile court records and court proceedings (closed with statutory exception);  26-7A-36 through -38;  26-7A-113 through -116

             (q)      Mental illness court proceedings and court records (closed);  27A-12-25; 27A- 12-25.1 through -32

             (r)      Pardons (statutory exceptions, see  24-14-11)

             (s)      Presentence investigation reports (closed);  23A-27-5 through -10;  23A-27-47

             (t)      Probationer under suspended imposition of sentence (record sealed upon successful completion of probation conditions and discharge);  23A-27-13.1; 23A-27-17

             (u)      Records prepared or maintained by court services officer (closed except by specific

order of court);  23A-27-47

             (v)      Trade secrets (closed);  15-6-26(c)(7)

             (w)      Trusts (sealed upon petition with statutory exceptions);  21-22-28

             (x)      Voluntary termination of parental rights proceedings and records (closed except by order of court);  25-5A-20

             (y)      Wills (closed with statutory exceptions);  29A-2-515

             (z)      Written communication between attorney and client; attorney work product (closed unless such privilege is waived); ch. 16-18, Appx. Rule 1.6

             (aa)      Information filed with the court pending in camera review (closed)

             (bb)      Any other record declared to be confidential by law;  1-27-3.

 

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CHAPTER 20-9

LIABILITY FOR TORTS

 

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20-9-4.2.   Physician treating minor without consent of parent or guardian--Immunity from liability--Treatments excepted. A minor as defined in  26-1-1 may be treated by a licensed physician before the minor's parent's or guardian's consent is obtained if a parent or guardian is not immediately available and if, in the opinion of the treating physician, exercising competent medical judgment, the attempt to secure the consent would result in delay of treatment which would threaten the minor's life or health.

     No physician, hospital, or other person assisting in the treatment of a minor may be held liable for providing medical or surgical treatment for a minor without consent of the minor's parent or guardian, if in the opinion of the treating physician, exercising competent medical judgment, the minor's life or health would be threatened by delaying treatment.

     This section does not apply to an elective abortion or to sterilization or to any device or medication for the control of birth, nor shall it be construed to constitute a modification or repeal of any other current provision of law pertaining thereto.

 

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CHAPTER 22-17

UNAUTHORIZED ABORTION

 

22-17-1.   Repealed by SL 1977, ch 189,  126

 

22-17-1.1 to 22-17-4.   Repealed by SL 1976, ch 158,  17-2

 

22-17-5.   Unauthorized abortion as felony. Any person who performs, procures or advises an abortion other than authorized by chapter 34-23A is guilty of a Class 6 felony. (This section is repealed pursuant to SL 2005, ch 187,  5. Section 7 of SL 2005, ch 187, as amended by SL 2005, ch 188,  1, provides: "Section 7. This Act is effective on the date that the states are recognized by the United States Supreme Court to have the authority to prohibit abortion at all stages of pregnancy.")

 

22-17-5.1.   (Section effective on the date states are recognized by the United States Supreme Court to have the authority to prohibit abortion at all stages of pregnancy)Procurement of abortion prohibited--Exception to preserve life of pregnant female--Felony. 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 7 of SL 2005, ch 187, as amended by SL 2005, ch 188,  1, provides: "Section 7. This Act is effective on the date that the states are recognized by the United States Supreme Court to have the authority to prohibit abortion at all stages of pregnancy.")

 

22-17-6.   Intentional killing of human fetus by unauthorized injury to mother. 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.

 

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CHAPTER 28-6

MEDICAL SERVICES TO THE INDIGENT

 

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28-6-4.5.   Public funds not to be used for abortion except to save life of mother. No funds of the State of South Dakota or any agency, county, municipality, or any other political subdivision thereof and no federal funds passing through the state treasury or any agency of the State of South Dakota, county, municipality, or any other political subdivision thereof, shall be authorized or paid to or on behalf of any person or entity for or in connection with any abortion that is not necessary for the preservation of the life of the person upon whom the abortion is performed.

 

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CHAPTER 34-23A

PERFORMANCE OF ABORTIONS

 

34-23A-1.   Definition of terms. Terms as used in this chapter mean:

             (1)      "Abortion," the use of any means to intentionally terminate the pregnancy of a woman known to be pregnant with knowledge that the termination with those means will, with reasonable likelihood, cause the death of the fetus;

             (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.

 

34-23A-1.1.   Attempt to perform abortion defined. 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.

 

34-23A-1.2.   Legislative findings--Termination of life. The Legislature finds that all abortions, whether surgically or chemically induced, terminate the life of a whole, separate, unique, living human being.

 

34-23A-1.3.   Legislative findings--Relationship between pregnant woman and unborn child. The Legislature finds that there is an existing relationship between a pregnant woman and her unborn child during the entire period of gestation.

 

34-23A-1.4.   Legislative findings--Risks to life and health of pregnant woman. 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.

 

34-23A-1.5.   Legislative findings--Special protection of rights of pregnant women. 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.

 

34-23A-1.6.   Legislative findings--Standard of practice requiring informed consent. 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.

 

34-23A-1.7.   Common law cause of action for medical malpractice informed consent claims based on reasonable patient standard reaffirmed--Application to abortion procedures--Construction. 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 law disclosure requirements.

 

34-23A-2.   Abortion lawful only under specified conditions. An abortion may be performed in this state only if it is performed in compliance with  34-23A-3, 34-23A-4, or 34-23A-5. (This section is repealed pursuant to SL 2005, ch 187,  1. Section 7 of SL 2005, ch 187, as amended by SL 2005, ch 188,  1, provides: "Section 7. This Act is effective on the date that the states are recognized by the United States Supreme Court to have the authority to prohibit abortion at all stages of pregnancy.")

 

34-23A-2.1.   Physician to inform in case of medical emergency. If a medical emergency compels the performance of an abortion, the physician shall inform the female, prior to the abortion if possible, of the medical indications supporting his judgment that an abortion is necessary to avert her death or that a delay will create serious risk of substantial and irreversible impairment of a major bodily function.

 

34-23A-3.   Abortion permitted during first twelve weeks--Medical judgment of attending physician. An abortion may be performed by a physician during the first twelve weeks of pregnancy. The abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician during the first twelve weeks of pregnancy. (This section is repealed pursuant to SL 2005, ch 187,  2. Section 7 of SL 2005, ch 187, as amended by SL 2005, ch 188,  1, provides: "Section 7. This Act is effective on the date that the states are recognized by the United States Supreme Court to have the authority to prohibit abortion at all stages of pregnancy.")

 

34-23A-4.   Abortion permitted during second twelve weeks--Place of performance. [These provisions have been held to be unconstitutional and unenforceable.] An abortion may be performed following the twelfth week of pregnancy and through the twenty-fourth week of pregnancy by a physician only in a hospital licensed under the provisions of chapter 34-12 or in a hospital operated by the United States, this state, or any department, agency, or political subdivision of either or in the case of hospital facilities not being available, in the licensed physician's medical clinic or office of practice subject to the requirements of  34-23A-6. (This section is repealed pursuant to SL 2005, ch 187,  3. Section 7 of SL 2005, ch 187, as amended by SL 2005, ch 188,  1, provides: "Section 7. This Act is effective on the date that the states are recognized by the United States Supreme Court to have the authority to prohibit abortion at all stages of pregnancy.")

 

34-23A-5.   Abortion permitted after twenty-four weeks only for medical necessity. An abortion may be performed following the twenty-fourth week of pregnancy by a physician only in a hospital authorized under  34-23A-4 and only if there is appropriate and reasonable medical judgment that performance of an abortion is necessary to preserve the life or health of the mother. (This section is repealed pursuant to SL 2005, ch 187,  4. Section 7 of SL 2005, ch 187, as amended by SL 2005, ch 188,  1, provides: "Section 7. This Act is effective on the date that the states are recognized by the United States Supreme Court to have the authority to prohibit abortion at all stages of pregnancy.")

 

34-23A-6.   Blood supply and testing facilities to be available during abortion--Inoculations required. Any abortion performed under the provisions of  34-23A-4 or 34-23A-5 shall be performed only in a facility which has a blood bank or a sufficient supply of blood immediately available and such facilities shall provide for Rhesus factor (Rh) testing and Rho-gam, Gammulin or any other product of equivalency inoculations shall be required for women undergoing abortion who have the Rh-negative factor.

 

34-23A-7.   Forty-eight hour notice to parent or guardian for minor or incompetent female-- Delivery of notice--Exceptions. No abortion may be performed upon an unemancipated minor or upon a female for whom a guardian has been appointed because of a finding of incompetency, until at least forty-eight hours after written notice of the pending operation has been delivered in the manner specified in this section. The notice shall be addressed to the parent at the usual place of abode of the parent and delivered personally to the parent by the physician or an agent. In lieu of such delivery, notice may be made by certified mail addressed to the parent at the usual place of abode of the parent with return receipt requested and restricted delivery to the addressee, which means a postal employee can only deliver the mail to the authorized addressee. If notice is made by certified mail, the time of delivery shall be deemed to occur at twelve noon on the next day on which regular mail delivery takes place, subsequent to mailing.

     No notice is required under this section if:

             (1)      The attending physician certifies in the pregnant unemancipated minor's medical record that, on the basis of the physician's good faith clinical judgment, a medical emergency exists and there is insufficient time to provide the required notice. Unless the unemancipated minor gives notice of her intent to seek a judicial waiver, a good faith effort shall be made by the attending physician or the physician's agent to verbally inform the parent within twenty-four hours after the performance of the emergency abortion, that an emergency abortion was performed on the unemancipated minor and shall also be sent a written notice, in the manner described in this section, of the performed emergency abortion. If the unemancipated minor, upon whom an emergency abortion was performed, elects not to allow the notification of her parent, any judge of a circuit court shall, upon petition, or motion, and after an appropriate hearing, authorize the waiving of the required notice of the performed abortion if the judge determines, by clear and convincing evidence that the unemancipated minor is mature and capable of determining whether notification should be given, or that the waiver would be in the unemancipated minor's best interest; or

             (2)      The person who is entitled to notice certifies in writing that the person has been notified. The certification is valid only if the signature has been notarized. If the person does not provide a notarized signature, the person shall be sent a written notice as described in this section. No abortion as described in this section may be performed until at least forty- eight hours after written notice of the pending operation has been delivered in the manner specified in this section; or

             (3)      A pregnant female elects not to allow the notification of her parent, in which case, any judge of a circuit court shall, upon petition, or motion, and after an appropriate hearing, authorize a physician to perform the abortion if the judge determines, by clear and convincing evidence, that the pregnant female is mature and capable of giving informed consent to the proposed abortion. If the judge determines that the pregnant female is not mature, or if she does not claim to be mature, the judge shall determine, by clear and convincing evidence, whether the performance of an abortion upon her without notification of her parent would be in her best interests and shall authorize a physician to perform the abortion without such notification if the judge concludes that her best interests would be served thereby.

 

34-23A-7.1.   Abortion without notification--Participation and representation of female-- Confidentiality--Appeal of denial. In any proceeding pursuant to subdivision 34-23A-7(1) or 34- 23A-7(3), the pregnant female may participate in proceedings in the court on her own behalf, and the court may appoint a guardian ad litem for her. The court shall, however, advise her that she has a right to court- appointed counsel and shall, upon her request, provide her with such counsel. Proceedings in the court under subdivision 34-23A-7(1) or 34-23A-7(3) shall be confidential and shall be given such precedence over other pending matters so that the court may reach a decision promptly and without delay so as to serve the best interests of the pregnant female. A judge of the court who conducts proceedings under subdivision 34-23A-7(1) or 34-23A-7(3) shall make in writing specific factual findings and legal conclusions supporting the decision and shall order a record of the evidence to be maintained including the judge's own findings and conclusions.

     An expedited confidential appeal shall be available to any such pregnant female for whom the court denies an order authorizing an abortion without notification. An order authorizing an abortion without notification is not subject to appeal. No filing fees are required of any such pregnant female at either the trial or the appellate level. Access to the trial court for the purposes of such a petition or motion, and access to the appellate courts for purposes of making an appeal from denial of the same, shall be afforded such a pregnant female twenty-four hours a day, seven days a week. Notwithstanding any other provision of law, all pleadings, papers, and other documents filed pursuant to this section are confidential, are not public records, and are not open for inspection by any member of the public for any purpose.

 

34-23A-8, 34-23A-9.   Repealed by SL 1977, ch 189,  126; SL 1977, ch 190,  63, 64.

 

34-23A-10.   Repealed by SL 1993, ch 249,  3.

 

34-23A-10.1.   (Delay in implementation or finding of unconstitutionality, see note at end of section) Voluntary and informed consent required--Medical emergency exception--Information provided. No abortion may be performed unless the physician first obtains a voluntary and informed written consent of the pregnant woman upon whom the physician intends to perform the abortion, unless the physician determines that obtaining an informed consent is impossible due to a medical emergency and further determines that delaying in performing the procedure until an informed consent can be obtained from the pregnant woman or her next of kin in accordance with chapter 34- 12C is impossible due to the medical emergency, which determinations shall then be documented in the medical records of the patient. A consent to an abortion is not voluntary and informed, unless, in addition to any other information that must be disclosed under the common law doctrine, the physician provides that pregnant woman with the following information:

             (1)      A statement in writing providing the following information:

             (a)      The name of the physician who will perform the abortion;

             (b)      That the abortion will terminate the life of a whole, separate, unique, living human being;

             (c)      That the pregnant woman has an existing relationship with that unborn human being and that the relationship enjoys protection under the United States Constitution and under the laws of South Dakota;

             (d)      That by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated;

             (e)      A description of all known medical risks of the procedure and statistically significant risk factors to which the pregnant woman would be subjected, including:

             (i)      Depression and related psychological distress;

             (ii)      Increased risk of suicide ideation and suicide;

             (iii)      A statement setting forth an accurate rate of deaths due to abortions, including all deaths in which the abortion procedure was a substantial contributing factor;

             (iv)      All other known medical risks to the physical health of the woman, including the risk of infection, hemorrhage, danger to subsequent pregnancies, and infertility;

             (f)      The probable gestational age of the unborn child at the time the abortion is to be performed, and a scientifically accurate statement describing the development of the unborn child at that age; and

             (g)      The statistically significant medical risks associated with carrying her child to term compared to undergoing an induced abortion.

                  The disclosures set forth above shall be provided to the pregnant woman in writing and in person no later than two hours before the procedure is to be performed. The physician shall ensure that the pregnant woman signs each page of the written disclosure with the certification that she has read and understands all of the disclosures, prior to the patient signing a consent for the procedure. If the pregnant woman asks for a clarification or explanation of any particular disclosure, or asks any other question about a matter of significance to her, the explanation or answer shall be made in writing and be given to the pregnant woman before signing a consent for the procedure and shall be made part of the permanent medical record of the patient;

             (2)      A statement by telephone or in person, by the physician who is to perform the abortion, or by the referring physician, or by an agent of both, at least twenty-four hours before the abortion, providing the following information:

             (a)      That medical assistance benefits may be available for prenatal care, childbirth, and

neonatal care;

             (b)      That the father of the unborn child is legally responsible to provide financial support for her child following birth, and that this legal obligation of the father exists in all instances, even in instances in which the father has offered to pay for the abortion;

             (c)      The name, address, and telephone number of a pregnancy help center in reasonable proximity of the abortion facility where the abortion will be performed; and

             (d)      That she has a right to review all of the material and information described in  34- 23A-1,  34-23A-1.2 to 34-23A-1.7, inclusive,  34-23A-10.1, and  34-23A- 10.3, as well as the printed materials described in  34-23A-10.3, and the website described in  34-23A-10.4. The physician or the physician's agent shall inform the pregnant woman, orally or in writing, that the materials have been provided by the State of South Dakota at no charge to the pregnant woman. If the pregnant woman indicates, at any time, that she wants to review any of the materials described, such disclosures shall be either given to her at least twenty-four hours before the abortion or mailed to her at least seventy-two hours before the abortion by certified mail, restricted delivery to addressee, which means the postal employee can only deliver the mail to the addressee;

     Prior to the pregnant woman signing a consent to the abortion, she shall sign a written statement that indicates that the requirements of this section have been complied with. Prior to the performance of the abortion, the physician who is to perform the abortion shall receive a copy of the written disclosure documents required by this section, and shall certify in writing that all of the information described in those subdivisions has been provided to the pregnant woman, that the physician is, to the best of his or her ability, satisfied that the pregnant woman has read the materials which are required to be disclosed, and that the physician believes she understands the information imparted. (SL 2005, ch 186,  10 and 11 provide: "Section 10. If any court of law enjoins, suspends, or delays the implementation of the provisions of section 7 of this Act, the provisions of  34-23A-10.1, as of June 30, 2005, are effective during such injunction, suspension, or delayed implementation." "Section 11. If any court of law finds any provisions of section 7 of this Act to be unconstitutional, the other provisions of section 7 are severable. If any court of law finds the provisions of section 7 of this Act to be entirely or substantially unconstitutional, the provisions of  34-23A-10.1, as of June 30, 2005, are immediately reeffective.")

 

34-23A-10.2.   Statement of informed consent--Misdemeanor--Report of physician's conviction--Female not penalized. A physician who, knowingly or in reckless disregard, violates  34-23A-2.1, 34-23A-7, or 34-23A-10.1 is guilty of a Class 2 misdemeanor. The court in which a conviction of a violation of  34-23A-2.1, 34-23A-7, or 34-23A-10.1 occurs shall report such conviction to the Board of Medical and Osteopathic Examiners.

     No penalty may be assessed against the female upon whom the abortion is performed or attempted to be performed. No criminal penalty or civil liability for failure to comply with subsection 34-23A-10.1(2)(c) or that portion of subsection 34-23A-10.1(3) requiring a written certification that the woman has been informed of her opportunity to review the information referred to in subsection 34-23A-10.1(2)(c) may be assessed unless the department of health has made the printed materials available at the time the physician or the physician's agent is required to inform the female of her right to review them.

 

34-23A-10.3.   Publication of educational materials. The health department shall publish, in culturally sensitive languages, within one hundred eighty days after July 1, 2005, the following printed materials in such a way as to ensure that the information is easily comprehensible:

             (1)      Materials designed to inform the pregnant woman of all the disclosures enumerated in  34-23A-10.1;

             (2)      Materials designed to inform the pregnant woman of public and private agencies and services available to assist a pregnant woman through pregnancy, upon childbirth and while the child is dependent, including adoption agencies, which shall include a list of the agencies available and a description of the services they offer; and

             (3)      Materials designed to inform the pregnant woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from the time when a pregnant woman can be known to be pregnant to full term, including any relevant information on the possibility of the unborn child's survival and pictures or drawings representing the development of unborn children at two-week gestational increments. Such pictures or drawings shall contain the dimensions of the fetus and shall be realistic and appropriate for the stage of pregnancy depicted. The materials shall be objective, nonjudgmental, and designed to convey only accurate scientific information about the unborn child at the various gestational ages.

     The materials shall be printed in a typeface large enough to be clearly legible and shall be available at no cost from the Department of Health upon request and in appropriate number to any person, facility or hospital.

 

34-23A-10.4.   Department of Health to develop and maintain multi-media website--Contents- -Collection of related statistics. The Department of Health shall, by January 1, 2004, develop and maintain a multi-media website that contains web pages covering each of the following topics:

             (1)      Embryonic and fetal development at various gestational stages;

             (a)      Anatomical and physiological characteristics; and

             (b)      Survival possibilities of the unborn child;

             (2)      Abortion methods commonly used for each trimester of pregnancy;

             (3)      Statistically significant abortion method risks, including infection, hemorrhage, danger to subsequent pregnancies, and infertility;

             (4)      Important pre-abortion procedures;

             (a)      Confirmation of pregnancy via sonogram; and

             (b)      Counseling and discussion of medical history to detect possible abortion risks;

             (5)      Post-abortion psychological and emotional complications;

             (6)      Parental notification as required by 34-23A-7;

             (7)      Assistance, benefits, and services:

             (a)      Names and contact information of public and private agencies; and

             (b)      Types and availability of public medical benefits and services;

             (8)      Responsibility of the father of the unborn child;

             (9)      Statistically significant pregnancy risks;

             (10) Adoption options:

             (a)      Names and contact information of public and private agencies; and

             (b)      Description of services.

     The state shall collect and maintain web statistics regarding the website developed and maintained pursuant to this section. However, no personal information may be collected.

 

34-23A-11.   Counselor or social worker not liable for arranging abortion--Retaliation from employer prohibited. No counselor, social worker, or anyone else who may be in such a position where the abortion question may appear as a part of their workday routine, shall be liable to any person for damages allegedly arising from advising or helping to arrange for or for refusal to arrange or encourage abortion, and there shall be no retaliation from any agency or institution with which such person may be affiliated or by which he may be employed.

 

34-23A-12.   No liability for refusal to perform abortion. No physician, nurse, or other person who refuses to perform or assist in the performance of an abortion shall be liable to any person for damages arising from that refusal.

 

34-23A-13.   Medical facility not to discriminate for performance or refusal to perform abortion. No physician, nurse, or other person who performs or refuses to perform or assist in the performance of an abortion shall, because of that performance or refusal, be dismissed, suspended, demoted, or otherwise prejudiced or damaged by a hospital or other medical facility with which he is affiliated or by which he is employed.

 

34-23A-14.   Hospital not required to perform abortions--No liability for refusal of abortion as policy. No hospital licensed pursuant to the provisions of chapter 34-12 is required to admit any patient for the purpose of terminating a pregnancy pursuant to the provisions of this chapter. No hospital is liable for its failure or refusal to participate in such termination if the hospital has adopted a policy not to admit patients for the purpose of terminating pregnancies as provided in this chapter.

 

34-23A-15.   Repealed by SL 1982, ch 263.

 

34-23A-16.   Birth certificate for live birth resulting from abortion--Death certificate on subsequent death. Whenever an abortion procedure results in a live birth, a birth certificate shall be issued certifying the birth of said live born person even though said live person may thereafter die in a short time. In the event death does ensue after a short time, a death certificate shall be issued; both the birth and death certificates shall be issued pursuant to law and rules and regulations of the State Department of Health.

 

34-23A-16.1.   Right to life of babies born alive. All persons born alive, whether in the course of an abortion procedure or not, shall have the same rights to medical treatment and other necessary health care.

 

34-23A-17.   Prohibition of fetal transplantation after effective abortion. An unborn or newborn child who has been subject to an induced abortion other than an abortion necessary to prevent the death of the mother or any tissue or organ thereof may not be used in animal or human research or for animal or human transplantation. This section may not be construed to preclude any therapy intended to directly benefit the unborn or newborn child who has been subject to the abortion. This section does not prohibit the use for human transplantation of an unborn child or any tissue or organ thereof if removed in the course of removal of an ectopic or a molar pregnancy.

 

34-23A-18.   Abortion as evidence in proceedings to terminate parental rights or to adjudicate dependency of child. Whenever a person is born alive in the course of an abortion procedure, the facts and circumstances involving the birth and the abortion procedure shall be considered relevant and material evidence in any proceeding under chapters 26-7A, 26-8A, 26-8B, and 26-8C for termination of parental rights or adjudication of dependency or neglect; and the Department of Social Services may commence such proceeding as it deems applicable under that chapter.

 

34-23A-19.   Reports required of facility or physician performing abortions--Contents--Name of mother omitted--Promulgation of rules. Any facility or physician performing abortions in this state shall report to the state department of health as follows:

             (1)      Total number of abortions performed;

             (2)      Method of abortion used in each abortion performed;

             (3)      Complete pathology reports giving period of gestation of fetuses, presence of abnormality, and measurements of fetuses, if the facility where the abortion is performed is so equipped to complete such reports;

             (4)      Numbers of maternal deaths due directly or indirectly to abortions;

             (5)      Reports of all follow-up, including short- and long-term complications in the female due to abortion;

             (6)      Other information required by the regulations issued by the department pursuant to this section.

     No report made under this section shall include the name of any female receiving an abortion.

     The Department of Health may promulgate rules pursuant to chapter 1-26 to provide for the reporting of such information concerning abortion as will enable the department to provide complete reporting to the centers for disease control of the public health services in the United States Department of Health and Human Services of all abortion-related data the centers for disease control recommend be reported to them by states.

 

34-23A-20.   Severability of provisions. If a part of this chapter is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this chapter is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.

 

34-23A-21.   Construction of chapter. Nothing in this chapter may be construed to repeal, by implication or otherwise, any provision not explicitly repealed.

 

34-23A-22.   Cause of action for certain abortions--Amount of damages--Attorney's fees. If any person performs an abortion willfully, wantonly, or maliciously in disregard to  34-23A-2.1, 34-23A-7, or 34-23A-10.1, the person upon whom such an abortion has been performed, and the parent of a minor child upon whom such an abortion was performed, or any of them, may maintain an action against the person who performed the abortion not to exceed ten thousand dollars in punitive damages. Any person upon whom such an abortion has been attempted may maintain an action against the person who attempted to perform the abortion not to exceed five thousand dollars in punitive damages.

     If judgment is rendered in favor of the plaintiff in any such action, the court shall also render judgment for a reasonable attorney's fee in favor of the plaintiff against the defendant. If judgment is rendered in favor of the defendant and the court finds that the plaintiff's suit was frivolous or brought in bad faith, the court shall also render judgment for a reasonable attorney's fee in favor of the defendant against the plaintiff.

 

34-23A-23.   Anonymity of female plaintiff--Specific written findings. In every civil or criminal proceeding or action brought pursuant to this chapter, the court shall rule whether the anonymity of any female upon whom an abortion is performed or attempted shall be preserved from public disclosure if she does not give her consent to such disclosure. The court, upon motion or sua sponte, shall make such a ruling and, upon determining that her anonymity should be preserved, shall issue orders to the parties, witnesses, and counsel, and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms, to the extent necessary to safeguard her identity from public disclosure. Each such order shall be accompanied by specific written findings explaining why the anonymity of the female should be preserved from public disclosure, why the order is essential to that end, how the order is narrowly tailored to serve that interest, and why no reasonable less restrictive alternative exists. In the absence of written consent of the female upon whom an abortion has been performed or attempted, anyone, other than a public official, who brings an action pursuant to this chapter shall do so under a pseudonym. This section may not be construed to conceal the identity of the plaintiff or of witnesses from the defendant.

 

34-23A-24.   Analyses of maternal mortality. The Department of Health shall monitor and analyze maternal mortality. The department may promulgate rules pursuant to chapter 1-26 concerning reporting related to maternal mortality, on death certificates or by other means, as will assist it in performing such analyses.

 

34-23A-25.   Analyses of pregnancy outcomes. The department may collect data from health providers and medical facilities for purposes of performing analyses of pregnancy outcomes to determine the number, or if that is not possible, the best available estimate of the number, of each of the following:

             (1)      Ectopic pregnancies;

             (2)      Stillbirths;

             (3)      Live births;

             (4)      Molar pregnancies;

             (5)      Spontaneous abortions;

             (6)      Induced abortions; and

             (7)      Any other pregnancy-related classifications the department deems useful.

34-23A-26.   Publication of findings on maternal mortality and pregnancy outcomes. The department shall include sections in its annual vital statistics and health status report detailing the findings derived from the analyses provided under  34-23A-24 and 34-23A-25. The department shall ensure that neither the information published in its reports, nor the information provided to researchers, with the exception of information requested by the centers for disease control of the public health service in the United States Department of Health and Human Services, identifies or could reasonably lead to the identification of any individual patient.

 

34-23A-27.   Partial-birth abortion prohibited--Violation a felony. [Sections 34-23A-27 to 34-23A-33 are unconstitutional and unenforceable.] No person may perform a partial-birth abortion which results in the death of a human fetus or infant. A violation of this section is a Class 6 felony.

 

34-23A-28.   Application of partial-birth abortion prohibition. The provisions of  34-23A-27 to 34-23A-33, inclusive, do not apply to any partial-birth abortion that is necessary to save the life of the mother because her life is endangered by a physical disorder, illness, or injury, including a life-endangering condition caused by or arising from the pregnancy itself, if no other medical procedure would suffice for that purpose.

 

34-23A-29.   Civil action for death of fetus or infant in partial-birth abortion. In the case of the death of a human fetus or infant as the result of a partial-birth abortion, the father of the human fetus or infant and, if the mother has not attained the age of eighteen years at the time of the partial-birth abortion, the maternal grandparents of the human fetus or infant may file a civil action to obtain appropriate relief, unless the plaintiff consented to the partial-birth abortion or unless the plaintiff's criminal conduct caused the pregnancy.

 

34-23A-30.   Money damages in partial-birth abortion. Civil relief pursuant to  34-23A-29 includes money damages for all injuries, psychological or physical, that are proximately caused by a partial-birth abortion in violation of  34-23A-27. Any plaintiff with standing to sue pursuant to  34-23A-29 who has paid for the costs of a partial-birth abortion may recover treble the costs in damages.

 

34-23A-31.   Prosecution of woman upon whom partial-birth abortion performed. No woman upon whom a partial-birth abortion is performed may be prosecuted under the provisions of  34- 23A-27 to 34-23A-33, inclusive, for conspiracy to violate  34-23A-27.

 

34-23A-32.   Partial-birth abortion defined. For the purposes of  34-23A-27 to 34-23A-33, inclusive, a partial-birth abortion is any abortion in which the person who performs the abortion causes a living human fetus to be partially vaginally delivered before killing the infant and completing the delivery.

 

34-23A-33.   Fetus and infant defined. For the purposes of  34-23A-27 to 34-23A-33, inclusive, the term, fetus, and the term, infant, are used interchangeably to refer to the biological offspring of human parents.

 

34-23A-34.   Physician's reporting form--Contents. The Department of Health shall prepare a reporting form for physicians which shall provide for the collection of the following information:

             (1)      The month, day, and year of the induced abortion;

             (2)      The method of abortion used for each induced abortion;

             (3)      The approximate gestational age, in weeks, of the unborn child involved in the abortion;

             (4)      The age of the mother at the time of the abortion and, if the mother was younger than sixteen years of age at the time the child was conceived, the age of the father, if known ;

             (5)      The specific reason for the induced abortion, including the following:

             (a)      The pregnancy was a result of rape;

             (b)      The pregnancy was a result of incest;

             (c)      The mother could not afford the child;

             (d)      The mother did not desire to have the child;

             (e)      The mother's emotional health was at risk;

             (f)      The mother would suffer substantial and irreversible impairment of a major bodily function if the pregnancy continued;

             (g)      Other, which shall be specified;

             (6)      Whether the induced abortion was paid for by:

             (a)      Private insurance;

             (b)      Public health plan;

             (c)      Other, which shall be specified;

             (7)      Whether coverage was under:

             (a)      A-fee-for-service insurance company;

             (b)      A managed care company; or

             (c)      Other, which shall be specified;

             (8)      A description of the complications, if any, for each abortion and for the aftermath of each abortion;

             (9)      The fee collected for performing or treating the abortion;

             (10)      The type of anesthetic, if any, used for each induced abortion;

             (11)      The method used to dispose of fetal tissue and remains;

             (12)      The specialty area of the physician;

             (13)      Whether the physician performing the induced abortion has been subject to license revocation or suspension or other professional sanction;

             (14)      The number of previous abortions the mother has had;

             (15)      The number of previous live births of the mother, including both living and deceased;

             (16)      The date last normal menses began for the mother;

             (17)      The name of physician performing the induced abortion;

             (18)      The name of hospital or physician office where the induced abortion was performed;

             (19)      A unique patient number that can be used to link the report to medical report for inspection, clarification, and correction purposes but that cannot, of itself, reasonably lead to the identification of any person obtaining an abortion; and

             (20)      Certain demographic information including:

             (a)      State, county, and city of occurrence of abortion;

             (b)      State, county, and city of residence of mother;

             (c)      Marital status of mother;

             (d)      Education status of mother;

             (e)      Race and hispanic origin of mother; and

             (21)      Certain Rhesus factor (Rh) information including:

             (a)      Whether the mother received the Rh test;

             (b)      Whether the mother tested positive for the Rh-negative factor;

 

             (c)      Whether the mother received a Rho(D) immune globulin injection .

 

34-23A-35.   Submission of physician's information report. By January fifteenth of each year, each physician who performed or treated an induced abortion during the previous calendar year or the physician's agent, shall submit to the department a copy of the physicians' information report described in  34-23A-34 with the requested data entered accurately and completely.

 

34-23A-36.   Annual public report--Information included. The department shall issue a public report annually providing the same detailed information required by the reporting forms required by  34-23A-34 to 34-23A-45, inclusive. The public report shall cover the entire previous calendar year and shall be compiled from the data in all the reporting forms required by  34-23A-34 to 34- 23A-45, inclusive, and submitted to the department in accordance with  34-23A-34 to 34-23A-45, inclusive. Each public report shall also provide such detailed information for all previous calendar years, adjusted to reflect any additional information from late or corrected reports. The department shall take care to ensure that none of the information included in the public reports may reasonably lead to identification of any physician who performed or treated an abortion or any mother who has had an abortion.

 

34-23A-37.   Information collection form. The Department of Health shall prepare a reporting form for physicians which shall provide for the collection of the following information:

             (1)      The number of females to whom the physician provided the information described in subdivision 34-23A-10.1(1); of that number, the number provided by telephone and the number provided in person; and of each of those numbers, the number provided in the capacity of a referring physician and the number provided in the capacity of a physician who is to perform the abortion;

 &nbsrment of a major bodily function;

             (5)      The name of hospital or physician office;

             (6)      The date of report by month, day, and year; and

             (7)      A unique patient number that can be used to link the report to medical report for inspection, clarification, and correction purposes but that cannot, of itself, reasonably lead to the identification of any person obtaining an abortion.


34-23A-38.   Submission of information collection form. By February twenty-eighth of each year, each physician who provided, or whose agent provided, information to one or more females in accordance with  34-23A-10.1 during the previous calendar year shall submit to the Department of Health a copy of the physicians' information report form described in  34-23A-37 with the requested data entered accurately and completely.

 

34-23A-39.   Reporting form for use of notice described in  34-23A-7. The Department of Health shall prepare a reporting form for physicians which shall provide for the collection of the following information:

             (1)      The number of females or parents whom the physician or agent of the physician provided the notice described in  34-23A-7; and of each of those numbers, the number of females who, to the best of the reporting physician's information and belief, went on to obtain the abortion;

             (2)      The number of females upon whom the physician performed an abortion without providing to the parent of the minor the notice described in  34-23A-7; of that number, the number who were emancipated minors, and the numbers from whom each of the exceptions to  34-23A-7 were applicable;

             (3)      The number of abortions performed upon a female by the physician after receiving judicial authorization to do so without parental notice;

             (4)      The same information described in subdivisions (1) through (3) of this section with respect to females for whom a guardian or conservator has been appointed pursuant to statutes on guardianship or conservatorship because of finding of incompetency ;

             (5)      The name of hospital or physician office;

             (6)      The date of report by month, day, and year; and

             (7)      A unique patient number that can be used to link the report to medical report for inspection, clarification, and correction purposes but that cannot, of itself, reasonably lead to the identification of any person obtaining an abortion.


34-23A-40.   Submission of reporting form. By February twenty-eighth of each year, each physician who provided, or whose agent provided, the notice described in  34-23A-7, and any physician who knowingly performed an abortion upon a female or upon a female for whom a guardian or conservator had been appointed because of a finding of incompetency during the previous calendar year shall submit to the Department of Health a copy of the physicians' information report form described in  34-23A-39 with the requested data entered accurately and completely.

 

34-23A-41.   Penalty for failure to submit reporting form. Any physician who fails to submit any report required by  34-23A-34 to 34-23A-45, inclusive, within a grace period of thirty days following the due date is subject to a late fee of five hundred dollars for each additional thirty-day period, or portion of a thirty-day period, that each report is overdue. Any physician who has not submitted a report, or has submitted only an incomplete report, more than one year following the due date, is also subject to a civil action brought by the department. A court of competent jurisdiction may direct the physician to submit a complete report within a period stated by court order or be subject to sanctions for civil contempt.

 

34-23A-42.   Failure to submit reporting form a misdemeanor. Any person who knowingly or recklessly fails to submit any report required by  34-23A-34 to 34-23A-45, inclusive, or submits false information under  34-23A-34 to 34-23A-45, inclusive, is guilty of a Class 2 misdemeanor.

 

34-23A-43.   Department to ensure compliance--Inspection. The department shall ensure compliance with  34-23A-34 to 34-23A-45, inclusive, and shall verify the data provided by periodic inspection of places where induced abortions are performed.

 

34-23A-44.   Department to ensure anonymity--Confidentiality of communication. No report made under  34-23A-34 to 34-23A-45, inclusive, may include the name of any female having an abortion. The Department of Health shall take care to ensure that none of the information included in any report required by  34-23A-34 to 34-23A-45, inclusive, including printed records, computerized records, or stored information of any type, can reasonably lead to the identification of any person obtaining an abortion. Except in the case of a mother who was younger than the age of sixteen at the time her child was conceived, any information collected by or under the direction of a physician or psychotherapist for the purpose of completing a report required by  34-23A-34 to 34-23A-45, inclusive, is privileged as a confidential communication under  19-13-7. In the case of a mother who was younger than the age of sixteen at the time the child was conceived, the privilege of confidentiality set forth in  19-13-7 may not be claimed in any judicial proceeding involving  22-22-1 or 22-22-30.1.

 

34-23A-45.   "Induced abortion" defined. For purposes of  34-23A-34 to 34-23A-45, inclusive, only, the term, induced abortion, means the use of any means to intentionally terminate the pregnancy of a female known to be pregnant with knowledge that the termination with those means will, with reasonable likelihood, cause the death of the embryo or fetus.

 

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CHAPTER 34-25

VITAL RECORDS AND BURIAL PERMITS

 

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34-25-32.3.   Disposition of remains of embryo or fetus. Remains of a human embryo or fetus resulting from an abortion or miscarriage, induced or occurring accidentally or spontaneously at a hospital, clinic, or medical facility shall be disposed of in the manner provided by  34-25-32.3 to 34-25-32.7, inclusive.

 

34-25-32.4.   Medical facility to provide for disposal of aborted fetuses. Any hospital, clinic, or medical facility in which abortions are induced or occur spontaneously or accidentally or any laboratory to which the remains of human embryos or fetuses are delivered shall arrange for the disposal of the remains by cremation, interment by burial, or by incineration in a medical waste incinerator approved by the Department of Environment and Natural Resources. If incineration is used, the remains of the human embryo or fetus shall be incinerated separately from other medical waste. The hospital, clinic, medical facility, or laboratory may perform any laboratory tests necessary for the health of the woman or her future offspring, or for the purposes of a criminal investigation, or for determination of parentage prior to disposing of the remains.

 

34-25-32.5.   Failure to comply as public nuisance. Any failure to comply with the provisions of  34-25-32.3 to 34-25-32.7, inclusive, constitutes a public nuisance. Any person, firm, or corporation failing to comply with the provisions of  34-25-32.3 to 34-25-32.7, inclusive, is guilty of a Class 1 misdemeanor.

 

34-25-32.6.   Disposition of fetal remains--Method. No religious service or ceremony is required as part of the disposition of the remains of a human embryo or fetus. The hospital, clinic, or medical facility shall discuss or disclose the method of disposition with the woman who had the miscarriage.

 

34-25-32.7.   Fetal organ, tissue donation--Circumstances--Consent required. Tissue and organ donation may occur in cases of spontaneous abortions if the consent of the mother is obtained.

 

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CHAPTER 36-4A

PHYSICIAN ASSISTANTS

 

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36-4A-20.1.   Practice agreement not to include abortion. The board may not approve any practice agreement that includes abortion as a permitted procedure.

 

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CHAPTER 36-9A

NURSE PRACTITIONERS AND MIDWIVES

 

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36-9A-17.2.   Collaborative agreement not to include abortion. The boards may not approve any collaborative agreement that includes abortion as a permitted procedure.

 

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CHAPTER 36-11

PHARMACIES AND PHARMACISTS

 

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36-11-70.   Refusal to dispense medication. No pharmacist may be required to dispense medication if there is reason to believe that the medication would be used to:

             (1)      Cause an abortion; or

             (2)      Destroy an unborn child as defined in subdivision 22-1-2(50A); or

             (3)      Cause the death of any person by means of an assisted suicide, euthanasia, or mercy killing.

     No such refusal to dispense medication pursuant to this section may be the basis for any claim for damages against the pharmacist or the pharmacy of the pharmacist or the basis for any disciplinary, recriminatory, or discriminatory action against the pharmacist.

 

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2005 Session Laws.

 

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CHAPTER 187

(HB 1249)

Abortions restricted.

 

         ENTITLED, An Act to  prohibit the performance of abortions, except to save the life of the mother, and to provide a penalty therefor and to provide for a delayed effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:

     Section  1.  That 34-23A-2 be repealed.

     Section  2.  That 34-23A-3 be repealed.

     Section  3.  That 34-23A-4 be repealed.

     Section  4.  That 34-23A-5 be repealed.

     Section  5.  That 22-17-5 be repealed.

     Section  6.  That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

     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  7.  This Act is effective on the date that the states are recognized by the United States Supreme Court to have the authority to regulate or prohibit abortion at all stages of pregnancy.

 

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