Internal Memo For South Dakota Health System Raises Legal Concerns About Proposed State Abortion Ban

Main Category: Abortion
Article Date: 17 Oct 2008 - 3:00 PDT

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An internal memo by lawyers for South Dakota health system Sanford Health says that a measure to ban abortion on the state's November ballot would impose "a standard that is not clearly defined" and would have "substantial legal implications" for the health system and its doctors, the Sioux Falls Argus Leader reports (Woster, Sioux Falls Argus Leader, 10/15). The measure, titled Initiated Measure 11, would ban abortions except in cases of rape or incest, to save a woman's life or to avert a "substantial and irreversible" maternal health risk of impairment to "a major bodily organ or system" (Daily Women's Health Policy Report, 9/23). According to the Argus Leader, opponents of the initiative have said that its vague language on what can be considered an exception to the abortion ban could hamper physicians' ability to practice medicine. Sanford President and CEO Kelby Krabbenhoft said that the memo was not intended to be released to the public and that the health system has no plans to take a stance on the ballot measure. The Argus Leader obtained the memo from the South Dakota Campaign for Healthy Families.

Sanford's current policy permits providers to perform abortions if a fetus is not viable or has a fatal anomaly, or if the health of the woman is at risk. The memo analyzing Initiated Measure 11 states, "For those instances where a pregnant woman faces uncertain but potentially very serious health risks, Initiated Measure 11 will require a physician to choose between possibly committing a felony or subjecting a pregnant woman to a higher degree of medical risk than what would otherwise be clinically desirable." According to the memo, despite exceptions in the initiative that "on their face, appear to cover ... instances in which pregnancies are permitted to be terminated in accordance with Sanford policy, Initiated Measure 11, if approved, will have substantial legal implications for Sanford Health and its providers." The memo adds, "Medical facilities and providers have learned, through the malpractice arena, that whether a physician's clinical judgment comports with 'accepted standards for medical practice' can be a matter of debate."

Krabbenhoft in a statement said, "There is nothing in the white paper or analysis that is either supportive or against Measure 11," adding that it "does clarify for us the potential impact of Measure 11 on patients, physicians, employees and services." He added, "To not ask for this kind of analysis of such a complicated and important matter would be negligent in my opinion" (Sioux Falls Argus Leader, 10/15).

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