Does South Dakota House Bill 1171 justify killing abortion providers?

Pro-life and pro-choice demonstrators argue in front of the Supreme Court during the March for Life in Washington, D.C., on January 24, 2011. Photo by Chip Somodevilla, Getty ImagesPro-life and pro-choice demonstrators argue in front of the Supreme Court during the March for Life in Washington, …The South Dakota House of Representatives is set to consider new legislation that would expand the definition of "justifiable homicide" to include killings intended to protect the life of a fetus, causing some to worry that the new law would, in effect, offer protection to those who target and kill abortion providers.

Edited to add: On Feb. 16, the South Dakota legislature decided to shelve the bill indefinitely, the New York Times reported. A spokesman for Gov. Dennis Daugaard said, "Clearly the bill as it's currently written is a very bad idea."

State Representative Phil Jensen, the staunchly pro-life chief sponsor of the Republican-backed House Bill 1171, told The Washington Post that the bill was meant to bring "consistency" to South Dakota criminal code, which already allows people to be charged with manslaughter if they cause the death of a fetus.

But at Mother Jones, Kate Sheppard points out that the bill 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."

The bill, which was first presented on January 25, was originally worded to protect pregnant women who defended themselves "against the unlawful force or unlawful deadly force she reasonably believes to be threatening her unborn child" and specifically did not apply to anyone other than defendants who were pregnant women.

Less than three week later, on February 9, the legislation was amended to read: "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. Homicide is justifiable if committed by any person in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, or the unborn child of any such enumerated person, if there is reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished." It passed out of the judiciary committee with a nine-to-three vote along party lines.

The bill, which is backed by 22 state representatives and four state senators, may have a good chance of passing in the House, which has a strong conservative majority. The South Dakota House of Representatives is made up of one independent, 19 democrats, and 50 republicans; the state senate has 30 republicans and five democrats.

Sara Rosenbaum, a law professor at George Washington University who frequently testifies before Congress about abortion legislation, told Mother Jones that the bill is legally flawed. "Constitutionally, a state cannot make it a crime to perform a constitutionally lawful act," she explained.

Jensen, the bill's chief sponsor, acknowledged the same and insisted it was proof that the bill wasn't intended to target abortion providers. "This code only deals with illegal acts," he told the Washington Post. "Abortion is legal in this country. This has nothing to do with abortion."

And yet, his example of how the bill would be relevant does seem contradict that statement. "Say an ex-boyfriend who happens to be father of a baby doesn't want to pay child support for the next 18 years, and he beats on his ex-girfriend's abdomen in trying to abort her baby," he explained in the Washington Post interview. "If she did kill him, it would be justified. She is resisting an effort to murder her unborn child."

But the problem, some say, isn't in what the bill does or doesn't protect, it's in what an extremist might think the bill allows.

"The bill in South Dakota is an invitation to murder abortion providers," Vicki Saporta, the president of the National Abortion Federation, states in the Mother Jones article. The South Dakota Campaign for Heathy Families warned supporters that the measure could have major implications if a "misguided extremist invokes this 'self-defense' statute to justify the murder of a doctor, nurse or volunteer."

Edited to add: There's an interesting discussion going on in the comments section here, about whether the bill gives activists the idea that killing a doctor is "justifiable homicide," with several people saying that they thought the idea was far fetched. But in a New York Times article posted yesterday, Troy Newman, leader of the anti-abortion group Operation Rescue, said he was "shocked" when he read the bill and worried that it could encourage violence. And Dave Leach, an Iowa anti-abortion activist, praised the bill, telling the New York Times, "There may be something I'm overlooking, but from all appearances, this bill would certainly justify an individual taking the life of an abortionist in order to save human lives."

South Dakota already has some of the most restrictive abortion laws in the country. Lawmakers there tried to ban abortion outright in 2006 and again in 2008 (voters rejected the ban both times). There have been no abortion providers based in South Dakota since 1994-Planned Parenthood flies a provider into the state once a week-and women must get counseling, have an opportunity to view a sonogram of their fetus, and hear lectures warning them that "the abortion will terminate the life of a whole, separate, unique, living human being" before waiting 24 hours hours to undergo the procedure. Until recently, doctors were also legally obligated to tell women seeking abortions that abortion poses a "known medical risk" and "increased risk of suicide ideation and suicide." (A U.S. District Court Judge decided in August 2009 that those statements were "untruthful and misleading"; the state has appealed that decision. A recent study of 350,000 women in Denmark found that abortion in and of itself does not necessarily harm a woman's mental health.)

Readers, what do you think? Is this another one of those impossible-to-define issues, like the difference between protected free speech and hate speech? If the law isn't about abortion, as it's main sponsor insists, and if existing laws already allow women to defend themselves when their or their children's lives are at stake, then what is South Dakota actually trying to legislate here?

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