Why States Keep Trying To Ban Abortion Procedures That Don’t Exist

Abortion protesters in South Dakota CREDIT: AP PHOTO/NATI HARNIK
Abortion protesters in South Dakota CREDIT: AP PHOTO/NATI HARNIK

Last year, as the South Dakota legislature advanced a bill to ban abortions based on the sex of the fetus — referred to as “sex-selective” procedures — one of the primary supporters of the legislation admitted there wasn’t any data to prove these type of abortions actually exist.

“We don’t have any hard data that says, ‘This number of sex-selection abortions are taking place in South Dakota,’” Spencer Cody, the vice president of South Dakota Right to Life and one of the people who testified in favor of the proposed ban, said in an interview with Mother Jones. “So we just used some demographic data. That’s really the only data we have to go on.”

That’s largely because sex-selective abortions simply aren’t happening. While female infanticide does remain an issue in some parts of the world, there’s no evidence that the Asian American or Pacific Islander individuals who live here in the U.S. are having abortions based on gender. According to a recent study from researchers at the University of Chicago Law School, laws aimed at banning sex-selective procedures “purport to solve a problem that may not exist at all in the United States.”

One year later, lawmakers in South Dakota are still focused on outlawing abortion procedures that don’t occur in their state. This week, a legislative committee advanced a bill to ban a type of abortion that isn’t offered at the state’s only clinic.


On Tuesday, a House committee approved House Bill 1230, which would “prohibit the beheading of certain living unborn children.” The strongly-worded legislation is aimed at outlawing a type of second-trimester surgical abortion procedure that’s officially known as Dilatation and Evacuation, or D&E.;

Abortion opponents are setting their sights on D&E; as the next abortion procedure they hope to ban on a state level, in the same way that a different surgical method — so-called “partial-birth abortion” — was banned in multiple states in the 1990s. South Dakota is pioneering this strategy; last year, it was the first state in the country to introduce a D&E; ban to “prohibit the dismemberment or decapitation of certain living unborn children.” This week, HB 1230’s main sponsor published a blog post declaring that Planned Parenthood is “worse than ISIS.”

But it doesn’t quite add up. South Dakota has just one abortion provider left — a Planned Parenthood clinic in Sioux Falls — and it doesn’t provide abortions after the first trimester of pregnancy, which is when the D&E; procedure would be performed. A Planned Parenthood spokesperson confirmed to a local NPR affiliate that the Sioux Falls clinic doesn’t offer D&E; abortions.

South Dakota isn’t unique in this respect. Lawmakers in other states are also spending their time introducing, debating, and passing anti-abortion laws that have little practical impact on the residents there. It’s an approach to policy that’s practically backwards.

“In general, looking down the road isn’t where policy is made. Policy is generally a reaction to situations on the ground,” Elizabeth Nash, the senior states issues associate at the Guttmacher Institute, told ThinkProgress. “But right now, what we see is a very different situation when it comes to abortion… We see all of these restrictions coming down the pike year after year that just do not make sense.”


Mississippi, for instance, recently approved a new law to ban abortion procedures after 20 weeks, even though the state’s sole clinic only offers abortions up to 16 weeks of pregnancy to begin with. This session, multiple states have introduced their own 20-week bans, and the two places where the proposed restriction is advancing most rapidly — South Carolina and West Virginia — don’t have any clinics in the state that offer abortions after that point in pregnancy.

States have also been eager to enact preemptive restrictions on the abortion pill. In a rush to ban “telemedicine abortion” — the emerging practice of prescribing the abortion pill to women over video chat, which helps expand health care access to people living in rural areas of the country — lawmakers have outlawed clinics’ telemedicine programs in areas where they don’t yet exist. Sixteen states now require the abortion pill to be prescribed in the physical presence of a medical professional, a law that prevents telemedicine abortion from ever getting off the ground.

In a more indirect example of this type of forward-thinking legislation, some states have moved to proactively ban abortion in case Roe v. Wade ever gets overturned. Four states have laws on the books that would automatically criminalize the procedure in the absence of Roe, and an additional eight have passed laws that state their intent to ban abortion to the fullest extent possible under the Supreme Court. Obviously, this type of legislation has no immediate impact.

Supporters of reproductive rights often grow frustrated with the amount of time and money that state legislatures focus on stringent abortion restrictions. These particular laws may seem especially indulgent. After all, considering conservatives’ stated goal of lowering the abortion rate, they don’t accomplish much in a meaningful way.

However, from the perspective of the anti-abortion community, there are several reasons why it might benefit a state to pass a restriction that doesn’t appear to make any real difference for the women living there.

“I think there are other sorts of motivations in play when we see these bills, even if they don’t have a practical effect immediately,” Nash said. “What you’re really doing is freezing an abortion provision in time.”


These kind of state-level bills end up limiting the options for medical professionals down the road. If an doctor trained in later procedures wanted to open a new clinic in Mississippi, for example, it would be very difficult for them to perform abortions up until viability because there’s already a ban in place. If providers in other parts of the country wanted to model themselves off of the Planned Parenthood clinics in Iowa, which have been pioneering telemedicine abortion, their hands are already tied by the laws in place.

There’s also a clear political strategy at play here. As an increasing number of states pass the same type of restriction on abortion, the anti-choice community is able to declare that the policy is gaining momentum. More laws on the books represent an important symbolic victory. And, within the context of that goal, ineffective laws are actually some of the best tools available. They’re less likely to be overturned because they’re harder to challenge in court.

“One of the key elements to any lawsuit is standing. And that means finding a plaintiff who can say, I am affected by this law,” Amanda Allen, the state legislative counsel for the Center for Reproductive Rights, a New York-based group that often litigates against abortion restrictions, told ThinkProgress. “That could be part of the legal strategy.”

Although Allen referred to these types of policies as “political posturing, pure and simple,” she said they still represent a serious threat to reproductive rights from a legal perspective. Anti-abortion lawmakers are effectively creating a patchwork of laws that ensures U.S. women’s constitutional rights differ depending on where they live.

Plus, even when abortion restrictions are intended to be symbolic, the vaguely written legislation can hamper medical professionals working in other contexts. It’s possible that South Dakota’s proposal to ban D&E; abortions will end up making it too legally risky for doctors to provide any type of surgical abortion, even in the first trimester. And in states with 20-week bans, women who have serious pregnancy complications after that point may end up in situations where hospital employees are unsure about what kind of miscarriage management is permitted during their emergency care.

That’s what South Dakota lawmakers may be banking on. When pressed about why exactly HB 1230 is necessary if the state’s only clinic doesn’t perform D&E; procedures, one of the sponsors of the legislation, South Dakota Rep. Thomas Brunner (R), told ThinkProgress there’s still a chance it could have an impact.

“The feeling is that hospitals are performing D&E; procedures that might actually be abortions,” Brunner wrote in an email. He added that in his mind, as a pro-life lawmaker, “if it saves one life it’s worth looking at.”


Late on Thursday, an amendment was added to HB 1230 that removed the original content and replaced it with just one sentence: “The State of South Dakota recognizes the sanctity of human life.” It does not offer any more detailed definitions about when the state believes that “life” begins. According to local press, South Dakota’s House of Representatives voted 65–3 to approve the amended version of the legislation.