RAPID CITY, S.D. — The South Dakota Supreme Court will be asked to decide whether police investigating the possible statutory rape of a 15-year-old girl needed a warrant to seize a placenta or other materials discarded after an abortion.
It’s a tricky question in South Dakota, where strict laws discourage abortion and many politicians view fetuses as equal to fully formed humans. A deputy state’s attorney argues in this case that the accused can have no expectation of privacy in medical remains and that tissue resulting from an abortion is simply waste, legally the same as household garbage.
The teenager from Rapid City, South Dakota, traveled nearly 400 miles (650 kilometers) to a clinic in Denver to have an abortion in May 2018, the Rapid City Journal reported. During the course of that procedure, the teen mentioned that she had been 15 when she became pregnant by her 25-year-old boyfriend. The age of consent in South Dakota is 16. The state’s only abortion clinic is in Sioux Falls.
The clinic reported the possible rape to Denver police, who turned over a sample of the placenta to a Rapid City detective in June that year. DNA tests confirmed that the boyfriend, Nathan Hankins, could not be excluded as the father, and he was charged in September with fourth-degree rape.
A clinic worker told the detective, Ryan Gebhard, that he didn’t need a warrant to collect the sample because it was considered medical waste and was being used in a criminal investigation, according to a brief filed by Lara Roetzel, chief deputy state’s attorney for Pennington County.
Hankins’ defense team argued that taking the placenta without a warrant violated his Fourth Amendment rights against unreasonable searches and seizures. While he approved of the abortion and knew the clinic would obtain and dispose of the remains, that didn’t mean he expected or consented for the material to be handed over to the police, attorney Martha Rossiter said.
“It really should shock people” that police officers can take body parts without a warrant the way they can take evidence from a trash can on a public sidewalk, Rossiter said.
Last week, Judge Jeff Davis rejected a defense motion to throw out the placenta evidence, saying the evidence was obtained in keeping with Colorado laws and medical practices.
Rossiter said the defense will appeal Davis’ decision to the South Dakota Supreme Court.
The prosecutor and defense attorney said they weren’t aware of any other South Dakota case that has used a placenta as evidence, but the prosecutor noted that one of the Colorado officers testified that he’s taken placenta samples about 12 times without a warrant, and that those seizures have never been challenged in court.
“To believe that society does not appreciate some expectation of privacy in medical remains would be shocking … this is not analogous to leaving a cup in the trash on the side of the road,” the defense lawyers wrote in a brief.
Roetzel said Colorado law and U.S. Supreme Court rulings make it clear that fathers have no right to prevent or be notified of an abortion, and therefore fathers have no control over or privacy interests in the results of an abortion.