Monday morning, Gov. Mike Rounds signed into law a ban on nearly all abortions in South Dakota. He called it a "direct challenge" to Roe v. Wade. But the ban also poses a direct challenge to the pro-life movement, and to itself, by permitting the destruction of what it calls unborn human beings.
According to Section 1 of the law, "life begins at the time of conception," and "each human being is totally unique immediately at fertilization." Accordingly, Section 2 bans the administration "to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being." Section 5 defines "unborn human being" as "the unborn child from fertilization to full gestation."
In short, if you terminate life after fertilization, you've killed a human being, and you're going to jail.
Section 3, however, tells a different story: "Nothing in section 2 of this Act may be construed to prohibit the sale, use, prescription, or administration of a contraceptive measure, drug or chemical, if it is administered prior to the time when a pregnancy could be determined through conventional medical testing."
Look at that language carefully. It doesn't just say you can take a contraceptive drug before sex. It says you can take such a drug after sex, as long as it's before conventional tests can detect a pregnancy.
Conventional tests can't detect a pregnancy at fertilization. They detect hormonal changes at implantation, which begins around the fifth day after fertilization and can take another week to complete.
In other words, South Dakota gives you five days to kill what it calls your unborn child.
How? By taking a morning-after pill such as Plan B. According to the Food and Drug Administration, Plan B "acts primarily by stopping the release of an egg from the ovary (ovulation). It may prevent the union of sperm and egg (fertilization). If fertilization does occur, Plan B may prevent a fertilized egg from attaching to the womb (implantation)." Fertilized egg, in South Dakotan, means human being. And prevention of implantation means death.
Why the loophole? Are South Dakota lawmakers confused about when life begins? Section 2 of their legislation says the ban applies only to a "pregnant woman." Do they think, as some moderate pro-lifers do, that pregnancy and life begin at implantation? Nope. Section 5 of the ban defines "pregnant" as "having a living unborn human being within [your] body throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation." Pregnancy begins at fertilization, as does life.
Is the loophole just a matter of enforceability? If conventional tests can't prove a woman was fertilized, prosecutors can't nail her pill provider for abortion. But that's an argument for omitting the loophole as unnecessary, not for inserting it.
What's curious about the loophole is that its supporters not only included it; they advertise it. In the second paragraph of his signing statement, Rounds pointed out that the ban "does not prohibit the taking of contraceptive drugs before a pregnancy is determined, such as in the case of rape or incest."
There's your answer. The purpose of the loophole is to give rape victims a grace period. Americans overwhelmingly think abortion should be allowed in cases of rape. Rape victims are the women most likely to know immediately after sex that they're at high risk of unwanted pregnancy. Give them morning-after pills, and you've solved the political problem.
But now you've got a scientific, moral, and legal problem. The South Dakota law purports to supersede Roe because "scientific advances since the 1973 decision" show that "life begins at the time of conception." It concludes that unborn children, "from fertilization to full gestation," have an "inalienable right to life." Nobody who seriously believed these things would give you five days to kill an embryo, any more than they'd give you five days to kill a baby. The loophole discredits the law's rationale.
Welcome to world of ambiguity, pro-lifers. Out of compassion for women in tragic but medically non-threatening circumstances, you agree that unborn life, up to a certain stage of development, may be aborted. Now we're just quibbling over the details.