Newest Republican Plan to Stop Abortions: Legalize the Murder of Abortion Providers

Let’s start with the actual text of South Dakota House Bill 1171 (the underlined text is what the bill would add to South Dakota’s existing laws):

FOR AN ACT ENTITLED, An Act to expand the definition of justifiable homicide to provide for the protection of certain unborn children.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
    Section 1. That § 22-16-34 be amended to read as follows:
    22-16-34. 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.
    Section 2. That § 22-16-35 be amended to read as follows:
    22-16-35. 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.

Now let’s back up for a moment. HB 1171 would amend the definition of “justifiable homicide”. Go back and read the bill without the underlined material and you will, I think, have a better understanding of current state of the law in South Dakota. In essence, the law says that I’m permitted to kill someone if I’m doing so to protect myself, my wife, my parents, or my child from being murdered or if there is reasonable ground to believe that I or my wife, parents, or child might be subject to “great personal injury”. (I’m not sure about the reference to “master, mistress, or servant”…) So, if an armed intruder enters my house, I’m probably within my rights (if I am in South Dakota) to shoot and kill the intruder. Similarly, if I’m mugged by an armed assailant, I’m probably within my rights to kill the assailant. If I get into a fight at a bar, and I’m reasonably concerned that the person I’m fighting with might do me great personal injury, then I’m probably within my rights to shoot to kill. There might be something to quibble with here and there, but I suspect that most would agree with those broad concepts (although the last example might be pushing things…).

But now go back and read the bill again, this time including the underlined material. Then, try to analyze the following situations and, for each situation, tell me if the homicide that I describe would be “justifiable” in South Dakota if HB 1171 were enacted into law:

• A woman becomes pregnant. She and her boyfriend argue about whether to terminate the pregnancy. The woman decides to get an abortion after the boyfriend refuses to marry her and tells her that he won’t pay child support. While she is in the clinic, the boyfriend bursts in and kills the abortion provider before he can terminate the pregnancy.
• A husband and wife mutually decide to terminate an unwanted pregnancy. The wife’s mother, an anti-abortion activist, walks into the clinic and shoots the abortion provider.
• A woman who had decided to obtain an abortion changes her mind just as the procedure begins. She panics and shoots the doctor.
• A father rapes and impregnates his teenage daughter. She seeks an abortion, but her father, the rapist, kills the abortion provider.
• A woman decides to have her friend drive her to a clinic in Iowa where there is easier access. Her boyfriend, thinking that the fetus is his, kills the friend to prevent her from taking the woman to the clinic.
• A woman learns her that her pregnancy endangers her own life and that she probably could not carry the fetus to term successfully and therefore decides to have an abortion. Her husband doesn’t believe in abortion and kills the abortion provider.

As I read HB 1171, in each of the foregoing examples, the person who committed the murder could claim justifiable homicide because in each example, the triggering event would either be “likely to result in the death of the unborn child” or would “do some great personal injury” to the fetus.

Do we really want a legal system that condones murder as a way to stop an abortion? Do we really want a legal system that condones murder by a rapist, estranged boyfriend, or deranged anti-abortion activist as a way to stop an abortion?

And just for “fun”, think about the following scenarios:

• A pregnant woman asks her husband to stop smoking around her and tells him that the secondhand smoke could harm the development of the fetus. The husband refuses to stop smoking, so the woman shoots him to protect her “unborn child”.
• A pregnant woman lives in a town that the EPA has noted has unsafe levels of mercury in the drinking water. She asks the mayor and town council to do something, but they refuse. So she shoots them to protect her “unborn child”.
• A pregnant woman asks her boss for some additional time off of work before she is due to deliver. He refuses (even though the law says that she should be given time off). The mother tells the boss that if she has to keep working right up to her due date, it could harm the fetus. The boss still refuses. So she shoots him to protect her “unborn child”.

Yeah, I know those examples may be a stretch, but read what the bill says would be a justifiable homicide.

A few additional points worth noting:

South Dakota already has some of the most restrictive abortion laws in the country, and one of the lowest abortion rates. Since 1994, there have been no providers in the state. Planned Parenthood flies a doctor in from out-of-state once a week to see patients at a Sioux Falls clinic. Women from the more remote parts of the large, rural state drive up to six hours to reach this lone clinic. And under state law women are then required to receive counseling and wait 24 hours before undergoing the procedure.

Before performing an abortion, a South Dakota doctor must offer the woman the opportunity to view a sonogram. And under a law passed in 2005, doctors are required to read a script meant to discourage women from proceeding with the abortion: "The abortion will terminate the life of a whole, separate, unique, living human being." Until recently, doctors also had to tell a woman seeking an abortion that she had "an existing relationship with that unborn human being" that was protected under the Constitution and state law and that abortion poses a "known medical risk" and "increased risk of suicide ideation and suicide." In August 2009, a US District Court Judge threw out those portions of the script, finding them "untruthful and misleading." The state has appealed the decision.

“South Dakota Moves To Legalize Killing Abortion Providers”, Mother Jones, February 15, 2011. And, it is also worth remembering that since 1993, eight doctors have been murdered by anti-abortion activists and seventeen others have been targeted. Moreover, in the recent trial of the killer of Dr. George Tiller (who Fox News’ Bill O’Reilly repeatedly referred to as “Tiller the Baby Killer”), the defense attempted to raise a defense of justifiable homicide. The judge rejected the defense.

Following the firestorm that has erupted in the wake of the initial attention given to HB 1171 by the Mother Jones article, Greg Sargent, writing for The Washington Post, described his interview with HB 1171’s sponsor, Phil Jensen:

[H]e defended the bill, arguing that it would not legalize the killing of abortion doctors.

"It would if abortion was illegal," he told me. "This code only deals with illegal acts. Abortion is legal in this country. This has nothing to do with abortion." In other words, since abortion is not "homicide," the law could not apply.

Jensen's defense of the bill, however, is unlikely to make abortion rights advocates any happier, since he seemed to dismiss as irrelevant the possibility that the measure could inflame anti-abortion fanatics to violence.

Jensen insisted that the bill's primary goal is to bring "consistency" to South Dakota criminal code, which already allows people who commit crimes that result in the death of fetuses to be charged with manslaughter. The new measure expands the state's definition of "justifiable homicide" by adding a clause applying it to someone who is "resisting any attempt" to murder of an unborn child or to harm an unborn child in a way likely to result in its death.

When I asked Jensen what the purpose of the law was, if its target isn't abortion providers, he provided the following example:

"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 [sic] abdomen in trying to abort her baby. If she did kill him, it would be justified. She is resisting an effort to murder her unborn child."

Pushed on whether the new measure could inflame the unhinged to kill abortion doctors, as some critics allege, Jensen scoffed. "You can fantasize all you want, but this is pretty clear cut," he said. "Never say never, but if some loony did what your suggesting, then this law wouldn't apply to them. It wouldn't be justifiable homicide."

Asked whether he was conceding that the law could conceivably encourage such behavior, Jensen pushed back: "You could cross the street and get hit by a car. Could happen, couldn't it?"

I don’t know about you, but I find Rep. Jensen’s explanation to be completely implausible. Why? Well, go back and read HB 1171 again, without the underlined material. Then think of how the existing law would apply to the situation that Rep. Jensen described. Wouldn’t the woman already be justified in killing her ex-boyfriend to protect herself? Adding the language regarding the “unborn child” adds nothing at all to the situation described by Rep. Jensen.

Moreover, look at Rep. Jensen’s defense with regard to how people are reading his bill. The problem seems to be that Rep. Jensen is one of those legislators who doesn’t really understand how the law works. The question is not what was in his mind when he wrote the bill or what “ill” he sought to address; rather, the question is what does the bill actually say. Of course, the simple remedy would be to add some kind of language to the law that says that it is not justifiable homicide to try to prevent a legal abortion. Perhaps, had Rep. Jensen simply said, “Gee, that’s an interesting point and a legitimate criticism of the language. We’ll add some language to address that concern,” then we could chalk the whole thing up to sloppy language and failure to think through the unintended consequences of proposed legislation. However, the fact that the bill’s sponsor is unwilling to concede that, as written, the bill goes far beyond his intent, demonstrates to me that he is either being disingenuous or simply lying. Given the way the legislature of South Dakota has addressed abortion previously …  well, I’ll let you decide what you think.

Is this why people voted Republican?