Does South Dakota’s ‘Justifiable Homicide’ Bill Target Abortion Doctors?

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Courtesy of PPMNS

Planned Parenthood's Sioux Falls facility

A new bill that seeks to expand the definition of “justifiable homicide” to include resisting attempts to harm an unborn child will go to vote in the South Dakota House of Representatives on Wednesday. Does this bill mean what abortion-rights groups think it means?

The measure, House Bill 1171, sponsored by Rep. Phil Jensen, would amend the definition of justifiable homicide this way:

Homicide is justifiable if committed by any person while resisting any attempt to murder such person, or to harm the unborn child of such person in a manner and to a degree likely to result in the death of the unborn child, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is.

The bill also includes defensive measures taken by said person’s husband, wife, parent or child. (More on Time.com: The ‘Unbortion': Chicago Hospital Persuades Women to Halt Abortions)

Jensen, a committed opponent of abortion, has argued that the measure is designed to protect pregnant women from illegal assaults on their unborn children, but abortion-rights groups are concerned that the bill implicitly justifies attacks on abortion doctors.

As Kate Sheppard at Mother Jones wrote: “If the bill passes, it could in theory allow a woman’s father, mother, son, daughter, or husband to kill anyone who tried to provide that woman an abortion — even if she wanted one.”

Jensen has adamantly argued that isn’t true. He said the law applies only to attempts to resist illegal acts, such as assault. Abortion being legal, the actions of abortion providers would not be included. (More on Time.com: Teens Answer: Why I Had a Baby)

However, as Amy Sullivan pointed out over on Swampland, that wouldn’t prevent extreme abortion opponents from testing the law’s boundaries:

South Dakota has a parental notification law. Does that mean if a doctor performs an abortion on a teenager who has not obtained her parent’s consent, that abortion is illegal and the doc is fair game? It’s unclear. And that’s a problem — even if the bill isn’t quite as inflammatory as it first appeared.

Jensen’s clarification left some legal experts scratching their heads. Robert Weisberg, director of the Stanford Criminal Justice Center, told Talking Points Memo that the law doesn’t actually distinguish legal acts from illegal ones: “Unless I’m misreading it, that’s not in the statute. Maybe the court would read it into a statute.”

On Wednesday morning, Jensen told Washington Post reporter Greg Sargent that he is now considering changing some of the bill’s language, in an apparent admission that it was not quite as clear as he intended. “There’s no way in the world that I or any other representatives wish to see abortion doctors murdered,” Jensen said. “So we’re looking at some language that will include that. We’re looking at some language that would protect abortion providers.” (More on Time.com: What Did the Planned Parenthood Sting Really Accomplish?)

Sargent reported that Jensen will meet with the state Attorney General to improve the bill’s language, and has proposed the following:

Homicide is justifiable if committed by any person while resisting any attempt to murder such person, or to harm the unborn child of such person in a manner and to a degree that is unlawful and likely to result in the death of the unborn child, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is.

“If Representative Jensen is proposing a change in language, it’s a much-needed step in the right direction,” said Sarah Stoesz, president and CEO of Planned Parenthood of Minnesota, North Dakota and South Dakota, who said that she feared for the safety of Planned Parenthood’s health-care providers and staff, but remained “steadfast in our commitment to providing compassionate care to the women and families in South Dakota.” (More on Time.com: Having an Abortion Doesn’t Lead to Depression)

Still, even if the bill’s language is changed, some argue that the underlying reason for expanding the definition of justifiable homicide seems to be to target abortion providers. Mother Jones’s Sheppard wrote:

Jensen … has said that he simply intends to bring “consistency” to South Dakota’s criminal code, which already allows prosecutors to charge people with manslaughter or murder for crimes that result in the death of fetuses. But there’s a difference between counting the murder of a pregnant woman as two crimes — which is permissible under law in many states — and making the protection of a fetus an affirmative defense against a murder charge.

“They always intended this to be a fetal personhood bill, they just tried to cloak it as a self-defense bill,” says Kristin Aschenbrenner, a lobbyist for South Dakota Advocacy Network for Women. “They’re still trying to cloak it, but they amended it right away, making their intent clear.”

As it stands now, South Dakota has the most restrictive abortion laws in the country, and there are only two abortion providers in the state.

Another piece of legislation, House Bill 1217, which passed a committee vote on Monday, would require women seeking abortion to undergo counseling at a crisis pregnancy center, and then wait 72 hours before obtaining an abortion. Crisis pregnancy centers are not regulated by any medical authority and are notorious for being anti-choice counseling services that disseminate medical misinformation about abortion.

“We will reserve judgment until we see the bill’s final language, but this episode from South Dakota is part of a disturbing trend,” said Nancy Keenan, president of NARAL Pro-Choice America. “This legislation has made headlines for two days, and it’s one of many examples where anti-choice state legislators are willing to waste time and resources to pursue an extreme agenda that voters didn’t ask for.”

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