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Brooke Mcgee* Beginning at Dawn, Jane Drives Over 450 Miles from Her Small Town of Buffalo, South Dakota to Sioux Falls, South D

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Brooke Mcgee* Beginning at Dawn, Jane Drives Over 450 Miles from Her Small Town of Buffalo, South Dakota to Sioux Falls, South D \\jciprod01\productn\G\GMC\27-1\GMC101.txt unknown Seq: 1 28-NOV-16 15:08 PREGNANCY AS PUNISHMENT FOR LOW-INCOME SEXUAL ASSAULT VICTIMS: AN ANALYSIS OF SOUTH DAKOTA’S DENIAL OF MEDICAID-FUNDED ABORTION FOR RAPE AND INCEST VICTIMS AND WHY THE HYDE AMENDMENT MUST BE REPEALED Brooke McGee* INTRODUCTION Beginning at dawn, Jane drives over 450 miles from her small town of Buffalo, South Dakota to Sioux Falls, South Dakota to obtain an abortion for an unintended pregnancy. Spending over seven hours in her car without a break, Jane arrives at the only clinic that offers abortion services in the state. Once there, she meets with the doctor scheduled to perform the abortion. Under state law, the doctor and Jane discuss several items before she can obtain the abortion. The doctor warns Jane that the “abortion will terminate the life of a whole, separate, unique, living human being,” “that by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated,” and that the medical risks associated with the procedure include suicide and infertility.1 Once the doctor confirms Jane has not been coerced into having an abortion and performs an exam, Jane must wait seventy-two hours before she is allowed to return to the clinic for the procedure.2 During the seventy-two-hour waiting period, Jane debates whether to make the 450 mile drive back home, in which case she would have to turn around in two days to make the same long drive, * George Mason University, J.D. Candidate, December 2016; University of Nebraska at Kearney, M.A. History, 2011, B.A. Political Science, magna cum laude, 2008. I would like to thank Pablo for his love and encouragement while I wrote this Comment. I would also like to thank everyone on the Civil Rights Law Journal for their feedback and support. 1 S.D. Codified Laws §34-23A-10.1 (1980; last amended 2005); GUTTMACHER INST., State Facts About Abortion: South Dakota (2015), https://www.guttmacher.org/pubs/sfaa/pdf/ south_dakota.pdf [hereinafter State Facts About Abortion: South Dakota]; see also Maria L. La Ganga, The Abortion Wars: Doctor Goes to Great Lengths to Keep Abortion Accessible, L.A. TIMES, (Oct. 14, 2014) http://www.latimes.com/nation/la-na-abortion-south-dakota-20141014- story.html. 2 S.D. Codified Laws §34-23A-56 (1980; last amended 2005); State Facts About Abortion: South Dakota, supra note 1; see also La Ganga, supra note 1. R 77 \\jciprod01\productn\G\GMC\27-1\GMC101.txt unknown Seq: 2 28-NOV-16 15:08 78 CIVIL RIGHTS LAW JOURNAL [Vol. 27:1 or spend the waiting period in a rundown hotel in Sioux Falls. Not wanting to make the 900-mile round-trip drive in the same week, Jane decides to stay in the hotel for $50 each night. On Thursday, Jane returns to the clinic for the procedure. The doctor informs Jane that, because she is now ten weeks pregnant, she must have a surgical abor- tion rather than a medication abortion.3 A surgical abortion costs up to $1,500 in the first trimester.4 Conversely, a medication abortion, which is available to women who are under nine weeks pregnant, costs up to $800.5 Once the procedure is complete, Jane begins her journey back home. In total, Jane spends nearly a week’s time obtaining an abortion, not to mention the travel, lodging, medical, and food expenses, plus time taken off work. Jane’s story is not unlike the stories of other middle-class women who seek to terminate an unintended pregnancy. Despite South Dakota’s restrictive abortion laws, Jane’s job as an accountant enables her to take vacation time to have the procedure performed and to pay for it out-of-pocket. But, consider Jane’s story from the perspective of an impoverished woman, Rosie. Rosie, unlike Jane, is a struggling, part-time community college student, a waitress at a local restaurant, and a mother to a toddler.6 Because Rosie is a single mom in college 3 In March 2016, the Food and Drug Administration released guidance stating the abortion pill can be taken to terminate a pregnancy up to ten weeks gestation. See Am. College of Obste- tricians and Gynecologists, ACOG Statement on Medication Abortion, (Mar. 30, 2016), http:// www.acog.org/About-ACOG/News-Room/Statements/2016/ACOG-Statement-on-Medication- Abortion. See also U.S. Food and Drug Administration, Mifeprex (mifepristone) Information, http://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyInformationforPatientsandPro viders/ucm111323.htm (last visited June 23, 2016). 4 The price of a surgical abortion varies based on the state and gestational time. This is an estimate from Planned Parenthood. See Planned Parenthood, In-Clinic Abortion Procedures, https://www.plannedparenthood.org/learn/abortion/in-clinic-abortion-procedures (last visited May 30, 2016); see also Planned Parenthood of Western Pennsylvania, Fees for Services, https:// www.plannedparenthood.org/planned-parenthood-western-pennsylvania/patients/fees-services (last visited May 30, 2016); Planned Parenthood of the St. Louis Region and Southwestern Mis- souri, Abortion Services, https://www.plannedparenthood.org/planned-parenthood-st-louis- region-southwest-missouri/shadow-pages/health-services/abortion-services (last visited May 30, 2016). 5 The price of a medication abortion (sometimes referred to as the “abortion pill”) varies based on the state and other factors. This is an estimate from Planned Parenthood. See Planned Parenthood, The Abortion Pill, https://www.plannedparenthood.org/learn/abortion/the-abortion- pill (last visited May 30, 2016); see also Planned Parenthood of Western Pennsylvania, Fees for Services, supra note 4; Planned Parenthood of the St. Louis Region and Southwestern Missouri, R Abortion Services, supra note 4. R 6 Fifty-nine percent of women seeking an abortion to terminate a pregnancy previously had given birth to a child. This statistic is important to note as women often seek abortions to termi- \\jciprod01\productn\G\GMC\27-1\GMC101.txt unknown Seq: 3 28-NOV-16 15:08 2016] WHY THE HYDE AMENDMENT MUST BE REPEALED 79 relying on tips from her waitressing job, she receives support from the federal government, namely Medicaid health care for her child and herself. Rosie, unlike Jane, becomes pregnant a second time after she was raped. Not wanting to relive the trauma of the rape every day of her pregnancy, Rosie seeks an abortion after learning she is seven weeks pregnant. Upon calling the abortion clinic to schedule the procedure, Rosie learns Medicaid will not cover her abortion in South Dakota, even though every other state in the country provides an exception for Medicaid-dependent women seeking to terminate pregnancies after being victims of rape or incest. Distraught, Rosie is unsure of what to do. She decides to sell valuable possessions, pick up extra shifts at her job, and eat one meal a day to save money for the abortion. Despite her best efforts, Rosie is unable to raise the hundreds of dollars she needs for either a medication or surgical abortion, on top of the other expenses she would incur, including childcare for her toddler, travel costs, and time taken off work to obtain the abortion. Because Rosie is unable to raise the money she needs, she seeks help from an unlicensed midwife. The midwife agrees to perform the abortion for one-third of the clinic’s price, so Rosie schedules the pro- cedure. Following the procedure, Rosie begins to have extreme abdominal pain. Eventually, she is rushed to the hospital after she begins hemorrhaging. Once at the hospital, the doctors discover Rosie has a bacterial infection in her uterus. Even after the doctors perform a hysterectomy, the infection spreads to other organs and, within a few days, Rosie dies. Rosie’s inability to pay for a safe, legal abortion, a procedure that should have been covered under federally funded Medicaid health care, ends up costing Rosie her life.7 Despite abortion’s legality in the United States, many states pass restrictions yearly that limit low-income women’s access to abortion, forcing these nate unintended pregnancies because they know they cannot afford to raise another child. See Jenna Jerman, Rachel K. Jones & Tsuyoshi Onda, Characteristics of U.S. Abortion Patients in 2014 and Changes Since 2008, GUTTMACHER INST., (May 2016), https://www.guttmacher.org/ sites/default/files/report_pdf/characteristics-us-abortion-patients-2014.pdf. 7 Rosie’s story is based on actual events. Rosie Jimenez ´ tragically died after she sought out an illegal abortion because she was too poor to pay for an abortion in a clinic after the Hyde Amendment took effect. See Alexa Garcia-Ditta, Reckoning with Rosie, TEXAS OBSERVER (Nov. 3, 2015), http://www.texasobserver.org/rosie-jimenez-abortion-medicaid/. See generally ELLEN FRANKFORT, ROSIE: THE INVESTIGATION OF A WRONGFUL DEATH (1978). \\jciprod01\productn\G\GMC\27-1\GMC101.txt unknown Seq: 4 28-NOV-16 15:08 80 CIVIL RIGHTS LAW JOURNAL [Vol. 27:1 women to take extreme measures to receive necessary medical procedures.8 In 1973, the Supreme Court held in Roe v. Wade that a woman has a fundamental right to terminate a pregnancy.9 Since the Roe decision, abortion opponents have successfully chipped away at abor- tion rights through both state and federal legislative processes and court cases.10 Notably, during the federal appropriations process in 1976, Congress passed a rider now widely known as the Hyde Amend- ment,11 which prohibited the use of federal Medicaid funds for abor- tion, with the exception of endangerment to the woman’s life.12 In 1993, the Hyde Amendment was expanded to add exceptions for rape and incest victims.13 Although many states initially refused to comply with these newly added exceptions, every state except South Dakota currently complies with the Hyde Amendment’s three exceptions to Medicaid-funded abortion.14 South Dakota continues to allow only Medicaid-funded abortion in cases where the woman’s life is endan- gered, but it provides no exceptions for rape or incest victims.15 First, this Comment will discuss the legalization of abortion.
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