SIOUX FALLS, S.D. (KELO) — Abortion is now illegal in South Dakota but the wording of the 2005 trigger law leaves doctors and patients in a legal gray area when it comes to other abortion procedures such as miscarriages.

It its entirety, the 2005 trigger law reads “prohibit the performance of abortions, except to save the life of the mother, and to provide a penalty therefor and to provide for a delayed effective date.” Not mentioned in this brief sentence, which is now the law of the land in South Dakota, is what abortions will be penalized.

According to the Kaiser Family Foundation (KFF), the methods used to manage a miscarriage or stillbirth are the same as those used in an elective abortion. Miscarriages can also be managed through the medication misoprostol and mifepristone, which is also used to terminate a pregnancy. Mifepristone can only be dispensed through clinics and hospitals, not over the counter. 

On Sunday, Governor Kristi Noem appeared on Face the Nation where she stated that the Class 6 felony, 2 years in prison and $4,000 fine if this law is prohibited will likely not impact the people seeking abortions.

“…It will always be focused towards those doctors who knowingly break the law to perform abortions in our state,” Noem said.

Libby Skarin with the American Civil Liberties Union (ACLU) said that the lack of clarity in the law puts both women and hospitals in a precarious position.

“We might see women die. Right. And that that’s not hyperbole,” Skarin said. “It’s what might happen now that abortion is illegal, and that doctors who perform abortions will be subjected to felony level penalties.”

Sanford Health said it is reviewing how the recent Supreme Court decision could impact care for their patients. They sent the following statement to KELOLAND News:

Sanford Health is committed to meeting the maternal health care needs of the communities we serve. While as a matter of policy we do not offer elective abortions, we are carefully evaluating any potential impact of the Supreme Court decision on the ability of our providers to deliver medically necessary care to our patients. Our focus remains on ensuring our providers, alongside our patients and their families, can continue to make the best clinical decisions for the health and safety of those we serve.

Sanford Health

A study from the National Library of Medicine found documented cases from Catholic-owned hospitals of patients actively experiencing a miscarriage being denied uterine evacuation, delaying care or transferring patients to another hospital system in some cases.

Avera Health told KELOLAND News that in the case of a mother suffering a miscarriage, the health system will “provide all medically indicated treatment.”

“You are correct, as a Catholic health ministry, we do not perform elective abortions as it is counter to our mission, our values and our faith,” a statement from the health system read. “Avera is dedicated to women’s health and maternity services – and will continue to provide women, children and families with high quality, compassionate care.”

Kim Floren with the Justice Empowerment Network (JEN) in Sioux Falls said that the organization has helped women in situations where abortion care was denied or delayed in South Dakota hospitals prior to the overturning of Roe v. Wade.

“We helped somebody through JEN who had actually been in the hospital because she was sick from her pregnancy and they still couldn’t do the abortion because they couldn’t prove their sickness was due to the pregnancy,” Floren said.

The patient was forced to quit work due to the severity of her illness and was unable to travel out of state to seek care. Because the current law is not very specific, Floren worries about other patients put in similar situations now.

“I don’t know what’s going to happen to people in a situation like that,” Floren said.

Floren added that in the past, Sanford Health had often referred patients to other services when they were unable to provide reproductive care due to state laws in place.

“So, now all of those patients are going to have to go to St. Paul or Moorhead,” Floren explained.

Skarin echoed this sentiment, stating that people in South Dakota may now have to seek care in surrounding states not just for abortions, but perhaps for other abortion procedures dealing with pregnancy loss.

“I mean, I think it is going to put women, especially women who are already pregnant, in pretty precarious situations,” Skarin said. “If there’s anything wrong with your pregnancy, if there are any complications, I think there is a chance that you wouldn’t be able to get the help that you need in time.”

Following the overturning of Roe v. Wade, Governor Noem announced a special session would be held later this year about the trigger law. But in the meantime, there are not clear answers for those like Floren and Skarin on the impact this will have on those seeking abortion care for other reproductive health needs.

“Those are people who need it. Why do we have to wait until they’re actively dying to give them the health care they need?” Floren said.

KELOLAND News reached out to Governor Noem’s office to ask how the trigger law and upcoming special session will address other abortion procedures in the state; this story will be updated with the response if one is received.