Anatomy of a Bad Law

Anatomy of a Bad Law

Before the South Dakota legislature passed landmark legislation banning abortion, it commissioned an objective study of the issue. The result, a flawed and one-sided report, could fuel the fight to challenge the law in court.


In February the South Dakota legislature overwhelmingly passed a bill banning all abortion unless the life of the mother is endangered, with no exceptions for rape or incest. Its passage was not a surprise; South Dakota’s legislature had produced a number of antiabortion bills during the previous session, including one bill that criminalized abortions provided to unemancipated youth and “incompetent females.”

But an analysis of the steps leading up to this landmark legislation, including a study commissioned by the legislature to examine the abortion issue, raises serious questions about how fully or fairly the lawmakers considered the medical, social and personal implications of abortion–and could be fuel in the fight by abortion rights activists to challenge South Dakota’s abortion ban.

In March 2005, the legislature voted to create a task force to objectively study the subject of abortion. The man behind the task force, and one of its members, was first-term Republican Representative Roger Hunt. “We wanted to make sure we’d done our homework this time,” said Hunt. “Before, we had a piecemeal approach to gathering information, and we decided it would make a lot more sense to try to get a complete picture of all the medical and scientific information that’s been made available in the last thirty-three years.”

The final product, a seventy-one-page report categorically condemning abortion, was published in mid-January. Hunt introduced the ban on abortion to the legislature just weeks later, and the findings of the task force are cited within the first clause of the bill as the scientific rationale for the prohibition of abortion. According to the dissenting minority of the fifteen-person task force (two of the seventeen appointees did not attend any meetings), the “fact-finding mission” was nothing but an excuse to legislate ideology.

Though it was designated a bipartisan committee, the task force ended up with a voting bloc of nine staunchly antiabortion members–a mix of antiabortion legislators, doctors, a Catholic antiabortion lobbyist and Dr. Alan Unruh, a chiropractor whose wife, Leslee Unruh, is the founder of Abstinence Clearinghouse. From the first meeting onward, the antiabortion majority refused to conduct the investigation with stringent scientific guidelines, as is standard in most research committees. Alan Unruh even protested that such restrictions would exclude research based on ideology. “This was supposed to be a fact-finding mission,” Kate Looby, South Dakota state director of Planned Parenthood recalls, “and it was so contentious you can’t even imagine. The atmosphere in the room at all times was hostile.”

The dissenters–Linda Holcomb, a family therapist; Dr. Maria Bell, the sole gynecologist on the committee; Senator Stanford Adelstein; and Looby–say the final report distorts the information and testimony the task force surveyed. Though the testimony was evenly divided between citizen and expert witnesses in favor of legal abortion and against it, most of the testimony in favor of legal abortion was omitted from the final report or discredited to what Looby considers a libelous degree.

“There were huge, glaring omissions in the report,” Looby says. “Almost every one of our expert witnesses on both sides of the issue were asked, ‘Would you ever want to practice in an environment in which all abortions were illegal?,’ and almost every one of their own witnesses said, ‘Oh, God, I would never want to practice in an environment in which all abortions are illegal.’ Is that in the report? No.”

Hunt is evasive when questioned about this omission. “There were a lot of statements made that didn’t make it into the report,” he said. “I don’t remember that many doctors making that kind of a statement.” But an examination of the testimony sheds light on the contention: Of the nine physicians who testified, eight claimed it was not medically advisable to create an environment where abortion was illegal.

Missing testimony isn’t the only troubling aspect of the report; the witnesses were routinely misrepresented. For instance, the report claims that “close to 2,000 women who have had abortions made statements detailing their experience…over 99 percent of them testified that abortion is destructive of the rights, interests, and health of women.” These figures actually refer to 1,500 affidavits originally collected as part of an Internet campaign, brought in by a Texas-based litigation firm, The Justice Foundation, and its antiabortion offspring, Operation Outcry, during the October 21 meeting of the task force. There were also seven out-of-state Operation Outcry representatives invited to testify before the task force, even though the day was reserved for South Dakotan testimony only. Though Hunt says he can’t remember who had invited Operation Outcry, Allison, the self-identified “pro-life” chair of the committee who often voted with the prochoice minority, says that Hunt was responsible for bringing in all the pro-life witnesses. “He may not remember, but I’m guessing he knows,” she added.

The report also uses statistics from pregnancy crisis centers like Carenet to conclude that women who have abortions are either mentally ill or uninformed about the procedure. Planned Parenthood’s procedural information script was submitted for scrutiny but discounted because it never identifies the fetus as a “whole, separate, unique living human being.” Instead, the report draws on the testimony of Cynthia Collins, head of a pregnancy crisis center in Louisiana. Collins’s claim that 70 percent to 85 percent of women seeking postabortion counseling at her crisis center were misled about the procedure is used to prove that the majority of all women who have abortions are misinformed. This type of selective sampling is performed throughout the report, repurposing statistics to support to the authors’ ideological claims.

Not surprisingly, the prochoice members had no say in the writing of the final report. On the morning of the final meeting, member Travis Benson, director of the Sioux Falls Catholic Diocese’s Respect Life office, distributed a bulky, seventy-one-page report to each member as they took their seats. Looby (who, along with minority members Bell, Adelstein and Holcomb, had brought twenty or so recommendations to share that day) was flabbergasted. “It was outrageous,” she recalls. “We had been told prior to that there was not going to be any sort of lengthy written report that would come out of this. People were supposed to bring recommendations to make to the legislative body on the final day… But we walked in and everybody was handed this seventy-one-page final report.” Allison too, despite being chair of the committee, was unaware of any plan to present a final draft of the report that morning. “I thought that people would bring their own individual ideas, motions that could be included in a final report that would be an amalgam of everyone’s input. As it turned out, there was just this prewritten report. There’s nothing that anyone else on the task force could do to alter it.”

No one claimed specific authorship of the report. “We were supposed to sit down, go through it, critique it, make motions, and we didn’t know who wrote it because no one would say,” Allison recollects. “I think there were several authors, but the only knowledge I have of who authored it is what I’ve read in the paper, honestly, because no one would ‘fess up during our meeting.” Hunt, whose statement on the report’s authorship is “I wasn’t necessarily part of any of the drafting,” contends that it was a group effort and that several members had been e-mailing drafts back and forth before the final meeting. “There were probably six or seven members who wrote different sections of it and then pooled their information,” he says. “I know that there were three or four other members who kind of went through the draft trying to tie it all together.” Neither Looby nor the other surprised members were privy to the alleged e-mail drafts. “We got the feeling there was a lot of national-level professional input,” Looby says.

The task force also refused to publish a minority report based on the twenty-one recommendations that Looby and others had made. One of the pro-life representatives argued that submitting a minority report “may weaken the position of the state in defending ongoing lawsuits.”

Looby says that she and the other minority members spent hours trying to correct errors in the report during the final meeting but were routinely voted down. The final straw was the report’s contention that there is a link between breast cancer and abortion. The report claimed that “reasons to suspect such a link are sufficiently sound,” though nearly all the evidence the group had accumulated supported the contrary. Looby and Bell made a motion to amend the claim, which was tabled without discussion. At that point, Looby, Adelstein, Holcomb and Bell left the meeting in protest. The final report was then endorsed nine to one, with Allison the lone dissenter.

The draft approved by the task force, however, is not the final report that appears in the files of the legislature. Though the report retains its antiabortion bias, Looby claims several judgments made about prochoice experts in the first report were toned down in the version made available to the public. “During the interim period, the LRC (Legislative Research Council) went through a process of making changes to the final report without the input of the task force,” Looby reported. “Apparently the LRC was disturbed by the process and the content of the final report–that some of it would be libelous in regards to the expert witnesses who testified–that they independently took out chunks of the report to prevent the state from being sued.” Allison verifies that the final version is not exactly the report presented at the final meeting. She remembers at one point the report labeled a prochoice expert’s testimony as “eugenic in nature,” words nowhere to be found in the final version. Hunt admits the report was edited by the LRC because “some of the material was kind of personal opinion,” but does not mention the threat of lawsuits.

“I think it’s important when we deal with any legislation to get the best factual, scientific and in this case medical information that we can,” Hunt said when asked how the task force report inspired his recent bill banning all abortions in the state. “It just makes for a better end-product in the form of legislation.” Of course, it’s entirely possible that had a task force not been established, the same legislation would have been introduced this winter and passed by an overwhelming majority. But the report served as a logical rationale–much like intelligence on WMDs served Bush’s foreign policy, or NASA’s selective science on global warming served the oil industry. It provides its backers with an official motivation other than ideology, wrapping itself in “science.”

Looby, Adelstein, Holcomb and Bell distributed their minority report independently. Meanwhile, Planned Parenthood is likely to file a lawsuit challenging the abortion ban. The task force’s flawed legislative report could be ammunition in the fight to have the law overturned. “Their intent was to come up with this report that would somehow justify the ban on all abortions,” Looby sighed. “I mean, it was a well-orchestrated, well-planned process.”

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