News Abortion

South Dakota Law Would Mandate Weekends and Holidays Can’t Count in Abortion Waiting Period

Robin Marty

Sorry, folks, weekends and holidays don't apply.

With their mandatory crisis pregnancy center counseling bill in the courts, a 72-hour waiting period ready to go into effect, and just one clinic in the entire state, you might think that South Dakota had mostly run out of ways to cut off abortion access via the state legislature.

You would be wrong.

The South Dakota legislature will be debating two bills this session, one that will allow doctors to refuse to perform abortions, refuse to test for genetic issues with a pregnancy, and protect the medical practitioner from lawsuits as a result of either issue. The second will be yet another tinkering with the state’s waiting period.

Letting doctors lie about genetic issues is a new favorite of anti-choice legislatures who seem intent on not just stopping abortion but undermining the fabric of the doctor/patient relationship. After all, if you will never know beyond a doubt that your doctor isn’t lying to you, how can you ever be truly comfortable in believing medical information he or she provides?

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In comparison, a new waiting period before an abortion almost seems tame. On the surface it is just a revamp of the 72-hour wait already proposed as part of the mandatory counseling bill stuck in the courts, a portion which Planned Parenthood of Minnesota, North Dakota, South Dakota already offered to let go into effect so they could continue to fight the mandatory CPC visit section of the law.

It’s once you get deeper into the details that you realize that it’s really not a 72-hour wait after all.

No surgical or medical abortion may be scheduled except by a licensed physician and only after the physician physically and personally meets with the pregnant mother, consults with her, and performs an assessment of her medical and personal circumstances. Only after the physician completes the consultation and assessment complying with the provisions of §§ 34-23A-53 to 34-23A-62, inclusive, may the physician schedule a surgical or medical abortion, but in no instance may the physician schedule such surgical or medical abortion to take place in less than seventy-two hours from the completion of such consultation and assessment except in a medical emergency as set forth in § 34-23A-10.1 and subdivision 34-23A-1(5). No Saturday, Sunday, federal holiday, or state holiday may be included or counted in the calculation of the seventy-two hour minimum time period between the initial physician consultation and assessment and the time of the scheduled abortion procedure. No physician may have the pregnant mother sign a consent for the abortion on the day of this initial consultation. [emphasis added]

First legislatures redefine science and pregnancy, now they are redefining the passage of time? Removing weekends and holidays will in essence turn the waiting period into a week long minimum, since it would be nearly impossible to schedule during weekdays. It leaves little doubt that the purpose of measure is to push women up to the timeline to where it is too late to obtain a termination, and in the process will force her to wait longer to eliminate her access to less invasive medication abortion and into a surgical procedure.

The additional “bankers hours” language is a completely new concept among waiting periods, which have never before tried to regulate which hours are allowed to be included. Utah, the only other state to enact a super-sized waiting period, leaves the issue unaddressed, and the two dozen states with a 24-hour period do as well. Elizabeth Nash, who tracks legislative bills for the Guttmacher Institute, says that no other state attempts to define the waiting period in such a direct way.

“It’s absurd that legislators are revisiting this issue,” Alisha Sedor, executive director of NARAL Pro-Choice South Dakota told Rewire. “This bill makes the waiting period even more egregious when its constitutionality is already unclear. South Dakota voters have twice shown that they believe this is a decision best left to a woman, her family and her medical provider. It is time for politicians to listen to their constituents and leave this issue alone.”

Analysis Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.

Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

Mid year state restrictions

 

Signs of Progress

The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedt struck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear. 

Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.

More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.

As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.

071midyearstatecoveragetable

But the Assault Continues

Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:

  • Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
  • Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
  • Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.

071midyearstateeligibilitytable

The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
  • Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.

071midyearstateabortionstable

In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.

Analysis Human Rights

ICE Releases Reports for 18 Migrants Who Died in Detention, Medical Neglect Is Suspected

Tina Vasquez

Though the death reviews released by ICE provide further insight into the conditions inside detention centers, the bigger concern among researchers and advocates is what they don't know.

A new report from Human Rights Watch (HRW) documents the deaths of 18 migrants in Immigration and Customs Enforcement custody from mid-2012 to mid-2015. In some cases, the deaths were likely preventable and the result of “substandard medical care and violations of applicable detention standards.”

These are not the only deaths that occurred, however. ICE acknowledges on its website that 31 deaths have occurred between May 2012 and mid-June of this year. It is unclear whether ICE intends to release information about the additional 13 deaths that have occurred.

Even so, these new findings add to a growing body of evidence showing what HRW calls “egregious violations” of medical care standards in detention centers. A February report found such violations contributed to at least eight in-custody deaths over a two-year period.

The public is just beginning to learn more about the deeply rooted problem, Clara Long, a researcher with Human Rights Watch and the lead researcher on the report, explained to Rewire. Long referenced an ongoing investigation by reporter Seth Freed Wessler at the Nation, which explores the numerous deaths that have occurred inside immigrant-only prisons.

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Though the death reviews released by ICE provide further insight into the conditions inside detention centers, the bigger concern among researchers and advocates is what they don’t know. For example, HRW worked with two independent medical experts to review the 18 death reviews released by ICE. The experts concluded that substandard medical care “probably contributed to the deaths of seven of the 18 detainees, while potentially putting many other detainees in danger as well.” Long told Rewire that the information provided by ICE simply wasn’t enough for their independent medical experts to determine that all 18 deaths were related to inadequate medical care, but that it was “likely.”

So there is the larger, systemic issue of inadequate medical care. Researchers at HRW also don’t know exactly how ICE collects information or why the agency releases information when it does. There’s also the core of the issue, as Long noted to Rewire: that the United States “unnecessarily” detains undocumented immigrants in “disturbing conditions” for prolonged periods of time.

Major Failures Lead to Death

The new HRW report identified two of the most dangerous ways ICE is failing migrants in detention: not following up on symptoms that require assistance and not responding quickly to emergencies. Both failures are illustrated by the case of 34-year-old Manuel Cota-Domingo, who died of heart disease, untreated diabetes, and pneumonia after being detained at the Eloy Detention Center in Eloy, Arizona.

ICE’s death review for Cota-Domingo suggests there was a language barrier and that Cota-Domingo was worried about having to pay for health care, which isn’t surprising given that detention centers make migrants pay for things like phone calls to their attorneys and family members. HRW asked Corrections Corporation of America, the company that runs the Eloy Detention Center, about potential fees for medical care, and it said there are no fees for such services at Eloy. For whatever reason, Cota-Domingo was not aware he had a legal right to access the medical care he needed.

When it became clear to his cellmate that Cota-Domingo was in serious need of medical attention and was having trouble breathing, the cellmate “banged on a wall to get a guard’s attention. His cellmate said he did that for three hours before anyone came to help,” Long said. The researcher told Rewire the death report outlines how investigators checked to see if the banging would have been audible to correctional officers.  It was. “Once [the cellmate] got their attention, our medical experts said this was something that should have been followed up on immediately, but the nurse decided to wait several hours before doing anything. All of these sluggish responses went on for eight hours. This is not how you treat an emergency,” Long said.

As Human Rights Watch noted in the report, “When officers finally notified medical providers of his condition, they delayed evaluating him and finally sent him to the hospital in a van instead of an ambulance. Both medical experts concluded that the combination of these delays likely contributed to a potentially treatable condition becoming fatal.”

In other death reviews by ICE, the agency’s own records show “evidence of the misuse of isolation for people with mental disabilities, inadequate mental health evaluation and treatment, and broader medical care failures.” Tiombe Kimana Carlos, Clemente Mponda, and Jose de Jesus Deniz-Sahagun all committed suicide in ICE detention after showing signs of “serious mental health conditions.” HRW’s independent experts determined that “inadequate mental health care or the misuse of isolation may have significantly exacerbated their mental health problems.”

It’s important to note that none of the death reviews released by ICE admit any wrongdoing, and that’s primarily because they don’t seek to examine whether medical negligence was at play. The reports simply present information about the deaths.

“There is no conclusion drawn, really,” Long told Rewire. “There’s one [report] in particular that even goes beyond that; it doesn’t even take into account the quality of care that led to the death, even though it’s clearly an issue of quality of care. That raises the question: What is the report for? ICE doesn’t conclude the cause. If you read [the death reviews], you can see there’s a lot of detailed information included in them that allows someone with expertise in correctional health care and who is familiar with how these systems should work, to make an assessment about whether care contributed to death, but that’s not something ICE doesat least not in the information we are able to access.”

ICE’s Murky Death-Review Process 

In a statement to Rewire, ICE explained that when a person dies while in the agency’s custody, their “death triggers an immediate internal inquiry into the circumstances.” The summary document ICE releases to the public is “the result of exhaustive case reviews conducted by ICE’s own Office of Detention Oversight (ODO), which was established in 2009 as part of the agency’s comprehensive detention reforms,” Lori K. Haley, a spokesperson with ICE, told Rewire in a prepared statement.

In fact, the ODO was created as a direct result of a series of reforms from the Obama administration after reports of human rights abuses and deaths in detention centers. The death review it produces includes a mix of findings from ICE’s own investigators and from a Beaumont, Texas-based company called Creative Corrections.

According to its website, Creative Corrections serves “local, state and federal government agencies,” offering “training, advising, professional management and consulting services” in “correctional, law enforcement, rule of law, and judicial systems.” The company contracts include the Department of Homeland Security (DHS).

“From what we can see from the documents, both ICE and Creative Corrections interview various people involved, check records, do what seems to be a pretty robust investigation for the death review,” Long said. “Unfortunately, in the set of death reviews that we used for this investigation, [the public doesn’t] have access to the Creative Corrections reports or any of the exhibits that go along with them.”

As the ICE spokesperson noted, the summary documents are typically written by ICE staff. The documents released to the public do not include medical records, full reports from Creative Corrections, or any exhibits that would provide more insight into the apparent medical neglect resulting in an estimated 161 people dying in ICE custody since October 2003. Six migrants have died in ICE custody since March 2016, two of whom died at two different detention centers in the same week. The causes of these most recent deathsand whether they can be attributed to medical neglect—is still unknown.

“If we had access to all of the information gathered during these investigations, including the reports from Creative Corrections, they would be very rich sources of information,” Long said.

Long and other researchers are also hoping for more information regarding the deaths that happen just after migrants are released from ICE custody. Teka Gulema, an Ethiopian asylum seeker detained at Etowah County Detention Center in Gadsden, Alabama, was released from ICE custody in November 2015 while in the hospital after becoming paralyzed from a bacterial infection acquired in detention. He died in January.

“One concern we have, and it’s a very big fear, is that there are multiple reports of folks who are released from ICE custody while in critical condition,” Long said. “When they die, they are no longer counted as in-custody deaths [by ICE]. We’re worried that’s a loophole being exploitedand for obvious reasons, we don’t have a number in terms of how often this is happening.”

The researcher said she has “no idea” when or why ICE decides to release information, including death reviews.

ICE did not respond to Rewire‘s request for information about its schedule or process for releasing such information.

“Maybe they released the 18 reports because they were cleared for release. Maybe a congressional office asked for them. Maybe they decided to be transparent. It could have been a [Freedom of Information Act] request from the ACLU. I wish I knew, but we really have no idea who decides—or why they decide—to release information, especially without making anyone aware that it’s been released,” the researcher told Rewire.

In April, ICE posted a series of spreadsheets about the inner workings of the detention system on their website that Long said provided a lot of information about how detention operates. The spreadsheets were removed from the site in a matter of days, too soon for many researchers—including HRW—to download them all.

“It’s a big system. We still don’t totally know how it works, which in itself is a major problem,” Long said. “One of the biggest lessons we’ve learned is to always check the ICE website. You never know what you’ll find.”

Rethinking Detention

DHS secretary Jeh Johnson is engaging in what some advocates are calling an “enforcement overdrive,” by funneling more undocumented immigrants into an already overcrowded detention system thanks to the detention bed quota established in 2009. This quota requires 34,000 undocumented migrants be locked up each day. It is in place to ensure more people get deported, though it’s costing taxpayers $2 billion a year while also creating “a profitable market for both private prison corporations and local governments,” the National Immigration Forum has said.

Reporting for the Nation, Michelle Chen recently noted that “migrants are warehoused under convoluted partnerships involving private vendors and state, local, and federal agencies. Homeland Security may contract out security duties to, or use facilities owned by, private vendors—dominated by Corrections Corporation of America (CCA) and GEO Group—with preordained headcount distributions ranging from 285 in Newark to more than 2,000 in San Antonio.”

Long told Rewire that 80 percent of migrants currently in detention are in what is considered “mandatory detention,” which, according to the Immigrant Legal Resource Center, means that “non-citizens with certain criminal convictions must be detained by ICE. People who are subject to mandatory detention are not entitled to a bond hearing and must remain in detention while removal proceedings are pending against them.” This also means that those in mandatory detention aren’t allowed to have an individual assessment by ICE of their case, “so they just sit in immigration detention indefinitely,” Long said.

“This system doesn’t work. We’re detaining far too many people for far too long and not determining on an individual level if they should be detained in the first place, taking into account all of the options available,” Long said. Options include being monitored by ICE using telephonic and in-person reporting, curfews, and home visits.

Long joins a long list of undocumented community members, researchers, organizers, activists, and other advocates pushing for the Obama administration—and whoever comes after it—to see detention as a last resort, rather than the only resort.

“We spend a lot of time talking about the disturbing conditions in detention centersthat’s what our report is about. But step one requires taking a step back and rethinking this system and how it’s unnecessary and also abuses vulnerable peoples’ rights,” Long said. “In terms of the legality of treating people this way, under U.S. and international law, people who are detained are entitled to medical treatment. The state has an obligation to provide care to this population. They are failing, and people are dying.”