For more than two decades, South Dakota has been overtly violating federal Medicaid law. Earlier this year, Republican South Dakota Gov. Kristi Noem brazenly stated that her administration will continue with the status quo. “South Dakota will continue to do what we always have done — not cover abortion costs under Medicaid,” the governor’s office said in a statement.
Since 1976, an annual appropriations bill rider known as the Hyde Amendment has restricted federal funding for abortion services except in the narrow circumstances of rape, incest or life endangerment. The current version of the Hyde Amendment requires Medicaid coverage when a patient “suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed.”
A South Dakota statute clearly establishes that coverage is only provided to those whose lives are in danger. This is nothing new. We know that South Dakota has been legally and morally liable for at least 26 years.
Not only is the state in violation of federal law, but it is seriously harming low-income individuals. According to a 2018 report by the National Academies of Science, Engineering, and Medicine, restrictions on abortion access hinder a person’s ability to access quality care. Another study concluded that restrictions on Medicaid coverage of abortion are an insurmountable barrier to obtaining abortion care. This violation disproportionately harms women of color in South Dakota. Of all who seek abortions in the state, 23 percent were people of color when these communities comprise less than 7 percent of South Dakota’s population. Medicaid enrollees in South Dakota deserve better than this.
In January 2019, the U.S. Government Accountability Office (GAO) was the latest government entity to condemn South Dakota for its failure to cover abortion under the cases of rape and incest. The GAO recommended that the Centers for Medicaid and Medicare Services take action to ensure South Dakota’s Medicaid state plan provides coverage for abortions in cases of rape and incest, in addition to life endangerment, to comply with federal law. Agreeing with the report’s recommendation, the U.S. Department of Health and Human Services committed to notifying South Dakota about its failure to comply with federal law and to urge the state to cover abortions in cases of rape and incest.
The fact that South Dakota is violating federal law is all the more concerning given the current state of abortion access in the state. Its laws already ban abortion if Roe v. Wade were to be overturned, force patients to wait 72 hours between their first counseling session and the abortion procedure, and prohibit doctors from utilizing telemedicine to care for the abortion patient.
But this will not continue without a fight.
It is imperative that South Dakota change its policy to cover abortions in cases of rape and incest (in addition to life endangerment), update all relevant documents to reflect that change, and notify Medicaid providers and enrollees that abortion under these circumstances is a covered service. This summer, my organization, the National Health Law Program, sent a letter to the South Dakota Medicaid Office expressing our concerns for its failure to cover abortions as required by the Medicaid Act.
We will continue to pressure South Dakota, and they will know that others are watching and won’t stop fighting until they comply with federal law.
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