A lawsuit says South Dakota's new four-appointment, three-week process for pill-based abortions is "medically unnecessary" and risky while disproportionately harmful to low-income and rural patients.
"The rule will have a profound and devastating impact on the provision of medication abortion in South Dakota," the complaint says. "The rule would severely burden medication abortion patients, creating insurmountable obstacles for some."
Planned Parenthood and the American Civil Liberties Union of South Dakota filed the lawsuit Wednesday in federal court.
The Planned Parenthood in Sioux Falls is the only elective abortion facility in the state. About 40% of its abortion patients opt for medication abortions over more invasive and expensive surgical ones.
Even if patients are willing to overcome the risks and inconveniences of new rules, the lawsuit says, Planned Parenthood would have to stop offering medication abortions since it doesn't have enough staff for the increase in required appointments.
Planned Parenthood "will not subject patients to the increased health risks and other harms from providing care according to the rule, with absolutely no medical benefits," the lawsuit says. Even if Planned Parenthood "did not have ethical and safety concerns about the rule, it logistically could not comply."
Abortions are currently conducted twice a week by three out-of-state doctors who travel to Sioux Falls. South Dakota-based doctors won't provide abortions due to "political stigma and hyper-regulation," the lawsuit says.
The lawsuit was filed after Gov. Kristi Noem signed an executive order and the Department of Health created rules addressing medication abortions. The rules go into effect on Jan. 27.
"Governor Noem is focused on protecting women's health," her spokesman Ian Fury said in a statement. "The ACLU and Planned Parenthood have shown that they are more worried about their bottom line."
Noem has said she hopes the U.S. Supreme Court overturns Roe v. Wade, a 1973 decision that says states can't impose an "undue burden" on abortion access. She supports banning abortion in South Dakota, which would automatically happen if Roe. v. Wade is overturned due to the state's "trigger law."
The lawsuit says pregnancy is more dangerous than abortion, and compares the risk of a medication abortion to taking over-the-counter medications like ibuprofen and antibiotics.
New rules, wait times
Noem's executive order says doctors must prescribe and provide abortion pills in person, not through telemedicine appointments or mail.
That has no impact on Planned Parenthood since South Dakota already requires in-person appointments that effectively banned telemedicine abortions, the lawsuit says.
The Department of Health later created rules to implement the order. It also added requirements for a third and fourth visit.
A legislative review panel approved the rules after some members expressed concerns about the process and necessity of the requirements.
South Dakota law already says patients must wait three days between an in-person consultation and abortion.
Medication abortion patients currently obtain and take mifepristone at the clinic. They are then given misoprostol and instructions to take it one to two days later at home.
The lawsuit says the first drug blocks progesterone, a hormone needed to continue pregnancies, while the second helps expel the fetus and placenta.
The new rules say patients must receive and take the misoprostol at the clinic one to three days after the mifepristone appointment. No other state has this requirement, the lawsuit says.
Patients then have to return two weeks later so a doctor can make sure the abortion is complete.
That means medication abortions in South Dakota now require four appointments that take at least three weeks, according to Planned Parenthood's Kristin Hayward.
If a patient makes a consultation on a Monday, they can't take the mifepristone until Thursday, she said. They can return as soon as Friday to take the misoprostol. They must then return two weeks later for the follow-up appointment.
Lawsuit
Misoprostol should be taken one to two days after mifepristone, the lawsuit says. It says delaying or skipping the second drug can cause some people to hemorrhage.
It's therefore dangerous for South Dakota to allow up to a three-day waiting period, the lawsuit says. Plus, some patients might miss their second appointment if they run into bad weather or can't find childcare.
The complaint says misoprostol is also used for other medical purposes such as miscarriage management and postpartum hemorrhage.
Using the drug for those procedures has a higher risk of hemorrhage compared to when it's used for abortions, the lawsuit says. But South Dakota is only increasing regulation when the medicine is used for abortion.
The lawsuit notes that the South Dakota State Medical Association agrees that the new rules "may result in an increased risk of hemorrhage and bad outcome.”
The complaint also says the rules create "severe burdens" for patients, especially for those who are low-income and live far away from Sioux Falls.
The lawsuit says 31% of the clinic's medication abortion patients had incomes below 110% of the federal poverty level. The federal poverty level is about $14,000 a year for a single person and just over $29,000 for a family of four.
Nearly 24% of medication abortion patients live more than 75 miles away from Sioux Falls, the lawsuit says. Eleven percent live more than 150 miles away.
That means some patients will have to drive more than 1,200 miles to and from four appointments. Or, they will have to find or pay for a place to stay in Sioux Falls. They might also have to pay for food and childcare while missing out on wages and schooling.
Noem said she made her order in response to the Food and Drug Administration allowing patients to obtain mifepristone by mail after obtaining a prescription through an in-person or telemedicine appointment.
Mifepristone used to be the only drug that the FDA said must be picked up in-person but could then be taken anywhere.
Noem said the FDA had this rule for legitimate medical reasons and only changed it due to pressure from the "abortion industry." She cited a study that found surgical abortion is more safe than medication ones.
The lawsuit says the FDA's old mifepristone rule was medically unnecessary and went against advice from the American College of Obstetricians and Gynecologists. The FDA has always allowed misoprostol to be delivered by mail.
