P r e g n a n c y a s P u n i s h m e n t f o r L o w -I n c o m e S e x u a l A s s a u l t
V i c t i m s : A n A n a l y s is o f S o u t h D a k o t a ’s D e n i a l o f
M e d i c a i d - F u n d e d A b o r t i o n f o r R a p e a n d I n c e s t V ictim s
a n d W hy t h e H y d e A m e n d m e n t M ust B e R e pe a l e d
I n t r o d u c t io n
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); G u ttm a cher I nst ., 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.
T im es , (Oct. 14, 2014) http://www.latimes.eom/nation/la-na-abortion-south-dakota-20141014story.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.
C iv i l R i g h t s L aw J o u r n a l
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/Abou t-ACOG/News-Room/Statemen ts/2016/A COG-Statement-on-MedicationAbortion. See also U.S. Food and Drug Administration, Mifeprex (mifepristone) Information,
viders/ucml 11323.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://
(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-louisregion-southwest-missouri/shadow-pages/health-services/abortion-services (last visited May 30
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-abortionpill (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,
Abortion Services, supra note 4.
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-
W hy t h e H y d e A m e n d m e n t M ust B e R e p e a l e d
relying on tips from her waitressing job, she receives support from the
federal government, namely Medicaid health care for her child and
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 o f U.S. Abortion Patients in
2014 and Changes Since 2008, G u t t m a c h e r I n s t ., (May 2016), https://www.guttmacher.org/
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, T e x a s O b s e r v e r
(Nov. 3, 2015), http://www.texasobserver.org/rosie-jimenez-abortion-medicaid/. See generally
E l l e n F r a n k f o r t , R o s ie : T h e I n v e s t ig a t io n o f a W r o n g f u l D e a t h (1978).
C iv il R ig h t s L aw J o u r n a l
w om en to take extrem e m easures to receive necessary m edical
In 1973, th e Suprem e C ourt held in Roe v. Wade that a w om an
has a fundam ental right to term in ate a pregnancy.9 Since the Roe
decision, ab o rtio n opponents have successfully chipped away at a b o r
tion rights through both state and federal legislative processes and
court cases.10 N otably, during the federal appropriations process in
1976, C ongress passed a rid er now widely know n as the H yde A m en d
m en t,*11 which p rohibited the use of federal M edicaid funds for a b o r
tion, with the exception of en dangerm ent to the w om an’s life.12 In
1993, the H yde A m endm ent was expanded to add exceptions for rape
and incest victim s.13 A lthough m any states initially refused to com ply
with these newly added exceptions, every state except South D akota
currently com plies with the H yde A m e n d m e n t’s th ree exceptions to
M edicaid-funded a b o rtio n .14 South D a k o ta continues to allow only
M edicaid-funded abortion in cases w here the w om an’s life is en d a n
gered, but it provides no exceptions for rape or incest victim s.15
First, this C om m ent will discuss the legalization of abortion. Sec
ond, this C om m ent will analyze the H yde A m e n d m e n t’s trajectory
8 In 2015, lawmakers introduced 396 provisions that sought to restrict access to abortion
services, enacting fifty-seven of these restrictions. See generally Rachel Benson Gold & Eliza
beth Nash, Attacks on Abortion Rights Continued in 2015, Ensnaring Family Planning Funding
and Fetal Tissue Research, R ew ir e (Jan. 4, 2016), http://rewire.news/article/2016/01/04/attacksabortion-rights-continued-2015-ensnaring-family-planning-funding-fetal-tissue-research/ [herein
after Attacks on Abortion Rights Continued in 2015], In 2014, lawmakers considered 335 provi
sions that sought to restrict access to abortion services, enacting twenty-six of these restrictions.
Moreover, from 2010 through 2014, lawmakers in states across the country adopted 231 new
abortion restrictions. See G u ttm a c h e r I nst ., In Just the Last Four Years, States Have Enacted
231 Abortion Restrictions (Jan. 5, 2015), https://www.guttmacher.org/article/2015/01/just-lastfour-years-states-have-enacted-231-abortion-restrictions [hereinafter In Just the Last Four Years,
States Have Enacted 231 Abortion Restrictions],
9 See Roe v. Wade, 410 U.S. 113, 155 (1973).
10 See generally Gonzales v. Carhart, 550 U.S. 124 (2007); Planned Parenthood o f South
eastern Pennsylvania v. Casey, 505 U.S. 833 (1992). In Carhart, the Supreme Court upheld the
Partial-Birth Abortion Ban Act. In Casey, the Supreme Court upheld a state law restricting
abortion that included mandatory waiting periods, parental consent, and biased information. See
also supra note 8 and accompanying text.
11 This Comment refers to the Hyde Amendment as “Hyde” or “the Amendment”
12 The Hyde Amendment, Pub. L. No. 94-439, 90 Stat 1418 (1976).
13 Departments of Labor, Health and Human Services, and Education, and Related Agen
cies Appropriations Act, 1994, Pub. L. No. 103-112, 107 Stat. 1082 (1993).
14 S.D. Codified Laws § 28-6-4.5 (1978).
W hy t h e H y d e A m e n d m e n t M u st B e R e p e a l e d
through Congress and subsequent challenge at the Supreme Court.
Third, this Comment will discuss the Hyde Amendment’s evolution
from its original language and expansion beyond Medicaid. Fourth,
this Comment will examine South Dakota’s refusal to comply with
these exceptions by analyzing how other states initially implemented
the original Amendment and later complied with the added excep
tions. Fifth, this Comment will analyze how the Amendment harms
low-income women, particularly women of color, in South Dakota and
the United States generally. Lastly, this Comment will propose two
The first and superior solution is to repeal the Hyde Amendment
because it inherently discriminates against low-income women.
Because M edicaid-dependent women often lack the financial
resources to fund abortion services independently, South Dakota’s
version of the Hyde Amendment further victimizes sexual assault vic
tims by forcing them to carry unintended pregnancies to term.
The alternate solution is for abortion providers and Medicaiddependent women in South Dakota to file a lawsuit against the state
in order to force South Dakota to comply with the Hyde Amend
ment’s rape and incest exceptions. A reform is desperately needed, as
rape and incest victims in South Dakota are entitled to the same
reproductive choices as women in other states.
The Legalization o f Abortion
In Roe v. Wade, the Supreme Court struck down a Texas law that
prohibited abortion except in cases where necessary to save the
woman’s life.16 Finding the Texas statute unconstitutional, the Court
held that a woman’s right to terminate a pregnancy is found in the
constitutional right to privacy.17 When Roe was decided in 1973,
nearly two-thirds of the states had already banned abortion.18 As a
result of these pre-Roe laws, it is estimated that 1.2 million women
each year sought out illegal abortion19 “despite the known hazards of
16 See Roe v. Wade, 410 U.S. 113. 155.
17 See id.
See id. at 118-19 n.2.
19 See NARAL Pro-Choice America Fact Sheet on Roe v. Wade and the Right to Choose,
C iv il R ig h ts L aw J o u r n a l
[V o l. 27:1
frightening trips to dangerous locations in strange parts of town, of
whiskey as an anesthetic, doctors who were often marginal or unli
censed practitioners, unsanitary conditions, incompetent treatment,
infection, hemorrhag[ing] disfiguration, and death. ” 20
In the Roe decision, the Court established the trimester frame
work for abortion regulation: during the first trimester of pregnancy, a
woman may make the decision free from state interference.21 After
the first trimester, the state has a compelling interest in protecting the
woman’s health and may reasonably regulate abortion to promote
that interest.22 After the point of fetal viability—generally during the
third trimester—the state has a compelling interest in protecting
potential life and may ban abortion, except when necessary to pre
serve the woman’s life or health.23
B. Restrictions on Abortion Funding: Introduction o f the Hyde
After the Supreme Court decided Roe, abortion opponents
worked to undermine the right to abortion.24 One of the principal
avenues abortion opponents pursued was eliminating federal funding
for abortion.2'' Specifically, abortion opponents at the state and fed
eral level fought to eliminate Medicaid26 funding for abortion.27 Prior
to the introduction of the Hyde Amendment, Medicaid funded nearly
[hereinafter NARAL Fact Sheet on Roe v. Wade] (citing Willard Cates, Jr. et al, Comment: The
Public Health Impact o f Legal Abortion: 30 Years Later, 35 P f.rsp . on Se x u a l & R e p r o d .
H ea lt h 25 (2003); Willard Cates Jr., Legal Abortion: The Public Health Record, 215 Science
1586 (1982); R ic h a r d Sc h w a r z , Septic : A bortio n 7 (1968)).
20 See NARAL Fact Sheet on Roe v. Wade, supra note 19 (citing Walter Dellinger & Gene
B. Sperling, Abortion and the Supreme Court: The Retreat from Roe v. Wade, 138 LJ. F a . L. R ev .
83, 117 (Nov. 1989)).
21 See Roe, 410 U.S. at 163.
22 See id.
23 See id. at 163-64.
24 See The Hyde Amendment, Pub. L. No. 94-439, 90 Stat 1418 (1976).
25 See id.
26 The Medicaid statute, found in Title XIX of the Social Security Act, is a federal govern
ment program administered by the states to provide health care funding for the impoverished.
See 42 U.S.C. § 1396 (2010) (establishing Medicaid and CHIP Payment and Access
27 See id. See also F r e d e r ic k S. J a ffe e t a l ., A bo rtion P o litics : P r iv a t e M o rality
and P ublic P olicy 132 (1981); Heather D. Boonstra, The Heart o f the Matter: Public Funding
o f Abortion for Poor Women in the United States, 10 G u ttm a c h e r P o l ’y R ev . 1 (2007), http://
www.guttmacher.org/pubs/gpr/10/l/gprl00112.pdf [hereinafter The Heart o f the Matter].
W hy t h e H y d e A m e n d m e n t M ust B e R e p e a l e d
one-fourth of abortions performed.28 Although federal legislative
efforts to restrict Medicaid-funded abortion proved unsuccessful for a
few years, individual states passed legislation to restrict abortion in
their states’ Medicaid programs.29
After a few years of lobbying, in 1976, Congress passed the Hyde
Amendment as a policy rider to the annual appropriations bill for the
Department of Health, Education, and Welfare.30 This rider prohib
ited federal funds from paying for abortion unless the woman's life
was endangered.31 The rider affects low-income women almost exclu
sively.32 The late Henry Hyde (R-IL), the conservative congressman
who proposed the amendment, acknowledged this reality during a
Medicaid funding debate in 1977, when he told his colleagues: “I cer
tainly would like to prevent, if I could legally, anybody having an
abortion: a rich woman, a middle-class woman, or a poor woman.
Unfortunately, the only vehicle available is the . . . Medicaid bill.”33
Although abortion rights activists obtained an injunction against the
rider, this injunction was later vacated by the Supreme Court in the
case of Harris v. McRae, paving the way for Congress to continue
including the Hyde Amendment in annual appropriations bills.34
From 1977 through 1980, city, state, and federal funding restric
tions for abortion were challenged at the Supreme Court. These
cases, collectively known as the “abortion funding cases,” are Maher
v. Roe, Poelker v. Doe, Beal v. Doe, and Harris v. McRae?5 Both
Beal and Maher challenged state laws that prohibited Medicaid cover
age for abortion unless the procedure preserved the woman’s health
28 See J a ff e , supra note 27 at 128.
29 See J affe , supra note 27 at 132. After the Roe decision and prior to the implementation
of the Hyde Amendment, thirteen states restricted Medicaid funding for abortion services. Id.
Just prior to the McRae decision in 1979, forty state legislatures restricted Medicaid funding for
abortion services. Id.
30 The Hyde Amendment, Pub. L. No. 94-439, 90 Stat 1418 (1976).
31 Id. The statute’s language stated, “None of the funds contained in this Act shall be used
to perform abortions except where the life of the mother would be endangered if the fetus were
carried to term.”
32 See Jessica Arons, Unhappy Birthday to the Amendment That Started the War on
Women. T h e D a ii .y B e a s t , (Sept. 30, 2012), http://www.thedailybeast.com/articles/2012/09/30/
33 123 C o n g . R ec . 19,700 (1977).
34 See Harris v. McRae, 448 U.S. 297, 302-04 (1 ...
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