South Dakota Bill Could Legitimize Murder of Abortion Providers


If you had any doubt that we are moving toward a hate-filled, vigilante society, you now have an unequivocal answer.  Scott Roeder claimed justifiable homicide in the assassination of Dr. George Tiller in his church vestibule. Now, just two days after a female member of the Minuteman militia was convicted of murdering two innocent people–including a 9-year-old girl–while attempting to murder another, South Dakota legislators have introduced legislation that could de-criminalize the shooting of doctors, nurses, patients and volunteers at clinics providing abortion care.

Yup. You read that right. Elected officials–all of whom supposedly swore to uphold the law–are now encouraging people to literally take the law–as they understand it–into their own gun-owning hands.

The South Dakota bill, House Bill 1171 (the language of which is below), is an outgrowth of legislation that criminalizes harm to fetuses, a back-door route used by anti-choice forces for the past decade to criminalize abortion by conferring the rights of personhood on a fetus.

HB 1171 is one of three new bills being considered by the South Dakota legislature which seems, in “representing the people,” to have completely forgotten that those same South Dakotans have repeatedly rejected such measures at the ballot box. The other two gems? House Judiciary Committee HB1217 would institute forcible “counseling” at anti-choice clinics (as Tiffany Campbell reported earlier) and HB 1218, would criminalize all surrogacy in South Dakota. 

“While each of these bills is absurd in their own right,” according to South Dakota Campaign for Healthy Families, “they have one thing in common.”

They are all attempts to allow government intrusion in to personal decisions best made by a woman, her family and doctor. Yet, a few ideologues continue to press their personal agenda and interfere with private decisions.  This must stop.

Fetal homicide statutes have been on some state law books since the early seventies, according to Stateline.org, but many did not stipulate when a fetus became a person and potential crime victim, leaving courts to decide whether the death of an early-term fetus constituted a separate crime in maternal murder cases.  But states more recently began using “cookie-cutter language in fetal homicide laws, assigning legal rights to fetuses at any gestational age,” Sondra Goldschein, state strategies director for the American Civil Liberties Union’s Reproductive Freedom Project, told Stateline.org in 2006. 

Abortion rights advocates have long argued that these laws are part of a legal strategy to establish that life begins at conception. “It’s the elevation of the status of the fetus that is going to erode the right to access abortion,” Goldschein said. Anti-abortion groups promote the laws, saying fetuses should be recognized as living human beings.

South Dakota has three such laws.  One defines vehicular homicide, which includes the death of an unborn child, if for example, someone driving under the influence of alcohol or controlled substances “causes the death of another person, including an unborn child” (2006 HB 1163).  A second law defines fetal homicide as occurring when a person who knew, or reasonably should have known, “that a woman bearing an unborn child was pregnant and caused the death of the unborn child without lawful justification.”  And a third defines homicide as “murder in the first degree to include the death of a person or any other human being, including an unborn child.”

None of these laws distinguishes between wanted and unwanted or untenable pregnancies and all of them confer rights on fetuses apart from their mothers, thereby undermining the core foundation of a woman’s right to choose whether and when to continue a pregnancy to term and to bear and raise a child.

HB 1171 would expand the definition of “justifiable homicide” to killings that are intended to prevent harm to a fetus, which many feel would make it legal to kill doctors who perform abortions. It states:

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.

In other words, it’s “justifiable homicide” if you feel justified in killing a doctor providing perfectly legal abortion care to a woman who has chosen to exercise her legal right not to carry a pregnancy to term, or who is physically unable to do so.  The bill passed out of committee on a nine-to-three party-line vote, and is expected to come up for a full vote on the floor of the state’s House of Representatives soon. It is cosponsored by 22 state representatives and four state senators. Unbelievable.

The original version of the bill did not include the language regarding the “unborn child,” according to state analysts, and was framed as a “simple clarification” of South Dakota’s justifiable homicide law. According to Kelsey of DakotaWomen.com, the bill:

[W]as recently amended from a sort of weird bill that I had hoped would result in gangs of armed pregnant women roughing up their homicidal baby daddies (remember, murder is the number one cause of death in pregnant women) to a piece of legislation that might inspire a horror movie called They Shoot Nurses, Don’t They?

The bill was “hoghoused –a term used in South Dakota for heavily amending legislation in committee, according to Kate Shepphard at Mother Jones—in a little-noticed hearing.”

Former DW contributor Laura elaborates:

House Judicial Committee testimony on the hoghouse amendment to SD HB 1171 (from those who knew the hoghouse was coming, the rest of us were caught pondering an entirely new bill and 10 seconds to respond = no hearing) makes clear that just allowing a pregnant mother to use protective deadly force, as read the original bill, isn’t acceptable to all the usual “prolife” proponents. They seek to codify murder of abortion providers (pharmacists? anyone driving you to the clinic?) by anyone the state defines as having an interest in that fetus. Don’t be suckered by rhetoric portending this just makes all the codes consistent. The Consistent Life Ethic crowd now values summary execution. Perhaps this isn’t so surprising in that they also support the life of a fetus over a mother’s life that requires abortion, that requires girls pregnant by their father/uncle/brother/rapist to have her little body and soul ripped apart by giving birth. “Consistent” is the messaging. Chilling and sadistic is the message.

That “Consistent Life Ethic” crowd referred to by Laura was represented by, according to Sheppard, “a parade of right-wing groups” including the Family Heritage Alliance, Concerned Women for America, the South Dakota branch of Phyllis Schlafly’s Eagle Forum, and a political action committee called Family Matters in South Dakota, all of which testified in favor of the amended version of the law.

Now, at least we know where the so-called pro-life community stands on the murder of physicians, and we no longer have to listen to declarations of innocence in the face of violence.

Indeed, in light of the fact that these supporters of egg-as-person laws, abortion bans without exception for life, rape or incest, and other intrusions on the life and personhood of women were so involved in the “hog-housing” otherwise known as bull-dozing of this bill in a rushed hearing, and of the fact that there is no move afoot to clarify that the bill does not render the killing of physicians to be justifiable, I am more than a bit incredulous to read the protestations of South Dakota State Representative Phil Griffin,  to Greg Sargent of the Washington Post According to Sargent:

Griffin 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.

Griffin’s defense of the bill, writes Sargent, is unlikely to assuage pro-choice advocates “since he seemed to dismiss as irrelevant the possibility that the measure could inflame anti-abortion fanatics to violence.”

I think we have heard that before.

********************

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.

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  • derekp

    Nice try Jodi,

     

    The law says that homicide is justifiable in the case of the unborn only for “resisting any attempt to murder such person” or if there is “a design to commit a felony.” According to law dictionaries, murder is the unlawful premeditated killing of an innocent human being. Because abortion is legal in South Dakota, justifiable homicide cannot be invoked as a defense for killing an abortion provider. The provider isn’t murdering anyone because abortion is not unlawful. And if he or she is not committing an unlawful act, then the grounds for justifiable homicide vanish.

     

    Now here’s my question, does a woman have a right to use lethal force to stop someone from trying to kill her wanted fetus? I mean if it’s just a clump of tissue that seems like an excessive use of force, don’t you think?

  • equalist

    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,

     

    I read this part to mean that only the pregnant woman, her husband (or the father of the fetus), parent, child, employer (master?) or employee (servent?) can claim justifiable homicide in the death of an abortion provider or other person involved in the abortion process for that particular woman.  Now, this does cause problems in the case of an abused woman aborting the child of her abuser, psychotic parents of pregnant women, coworkers and supervisors, but at the same time, going backwards through the list, I think most women going through that kind of difficult decision would be reluctant to share that kind of information with coworkers or supervisors and the only cases where I can see there being a real threat is from abusive partners and parents of the pregnant women involved.  In the case of abusive partners in particular I can see trouble considering many abusive men who get “their” women pregnant would intend for them to stay that way as a means to control them further by using the child.  In addition, this doesn’t appear to excuse homicide in the case of a woman who has already undergone an abortion, as the motive would then become revenge rather than defense of.  You can’t defend an already aborted fetus.  Again, perhaps I’m reading this wrong, but rather than encourage the murder of all abortion providers, a crazy seeking to kill a provider would first have to convince a pregnant woman in one of these categories to go to said provider for an abortion, so that there would be enough evidence of threat to claim justifiable homicide for the killing. 

    Now don’t get me wrong either, my interpretation of the wording taken into account, I think it’s a horrible blow to women in abusive situations, as theoretically it could cause providers to be less willing to provide health services to women pregnant by abusive partners or girls with abusive parents out of fear that this wording of the law could be used to encourage murder by said abusers, and I do see how this can be taken as further whittling away at already difficult to access services, as well as the underhanded manner in which the law was brought up does a great disservice to our legal system.  On the other hand I don’t think it can be taken as an “OMG the crazies are going to be able to justify killing all the providers!” situation either.

  • mishellybee

    This is absolutely one of the most scary things I’ve read about.  How could pro-lifers even call themselves pro-lifers?

     

    If you’re against abortion, think about this…what would our society be like if all of the unwanted pregnancies weren’t aborted?  I really believe our society would be in much worse shape than it is now! 

  • squirrely-girl

    Now here’s my question, does a woman have a right to use lethal force to stop someone from trying to kill her wanted fetus?

    Unless the other person has some weird telepathy skills we don’t know about and is thus able to mentally will the pregnancy to an end, then any attempt to kill the fetus would be an assault on her person. So yes, a woman would have a right to use lethal force to stop someone from assaulting her… just the same as she would before this. :/

  • arekushieru

    I think the law is supposed to read as in defence of said persons (husband, employer, etc…), not defence by said persons.

  • ldan

    Actually, you skipped the relevant part of the wording. “Such person” does not refer to the unborn as far as I can tell here. Without seeing the entireity of the law, I’m working on inference here, but let’s see if this follows.

     

    “Such person” appears to refer to a person who is having an attempt of violence, murder, etc. directed at them. The next phrase, “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,” does not refer to the act against the unborn child with the terms ‘murder,’ or ‘felony.’ The language leaves it open to be interpreted as applying to entirely legal abortion since it is certainly “likely to result in the death of the unborn child.”

     

    Squirrely Girl answered your latter question quite succinctly, so I’ll leave that be.

  • ldan

    I also think it would be really easy for the fanatics to use this as justification to make an appointment for an abortion, and then start shooting people while in the procedure room with the defense of “I told them to stop and they wouldn’t.” Kind of hard to refute their word if everyone else is dead.

     

    With that in mind, you’d be looking at clinics needing to put even greater security measures in place, again reducing the ability of clinics to function and further reducing access.

     

    Besides, do we really need a law that provides cover to abusive and controlling partners and parents?

  • arekushieru

    Abortion is not murder because it involves neither intent to kill, premeditation, malice or illegality.  Unlike the death penalty, which is not murder only by the fact that it is legal.

    A clump of tissue?  Really, can’t you use anything more than these tired, old, debunked arguments?

  • davewise

    as a nurse I know that more hate tends to fester in the heart, but with the way things are going I would like to offer what I can, because humanity has apparently lost its soul…

     

    I own several hunting rifles and a .45 handgun, I’m a damn good shot, I would like to offer my services as an armed guard for any clinic doctor, or to escort patients, sadly, these idiots are forcing us to contemplate this

  • freetobe

    I think you are right in fact I am thinking about purchasing and training how to use firearms!  this country is turning into the middle east. I think some of the men here are just jealous of all the power the Taliban has over “their” women things, you know we are just property.

    We need to get the ERA ratified NOW there is no excuse for us not having full protection by our constitution!!! there would be no more wage gaps no more abortion laws because we would have the full backing of the constitution. Instead of us wasting our time fighting all these states we should be geting a full frontal assalt on the DC group and Pres Obama to get this bill ratified!!! Why are us women so damn apathetic!!! Come on women where is your fighting spirit? Think of your daughters ,granddaughters heck the girls across the street. Do we want them suffering this way years down the road???

  • arekushieru

    However, any anti-choicer should actually be willing, at a moment’s notice, to take that right to life away, entirely, since her right to life tends to, annoyingly, interfere with the fetal right to life.  Although, since that doesn’t work, they could then turn around and try to grant her the right to make medical decisions for any dependants (of which, the fetus is the greatest) but then this would run contrary to the lack of such rights they would grant her in the event she was seeking abortion care.  

  • arekushieru

    None of these laws distinguishes between wanted and unwanted or untenable pregnancies and all of them confer rights on fetuses apart from their mothers, thereby undermining the core foundation of a woman’s right to choose whether and when to continue a pregnancy to term and to bear and raise a child.

    I would like to address this, however.  I think, if such laws DID actually exist that distinguished between wanted, unwanted or untenable pregnancies, that they would undermine even further this core foundation of a woman’s right to choose.  As it stands, there is a distinction only between the method used and force applied.  Abortion care is considered medical treatment, appropriately performed by medical professionals.   Abortions are willingly chosen by the women.  And, like sex, if they are applied without all forms of explicit consent, they are forced.  Distinguishing between wanted, unwanted and untenable, only adds more fuel to the Anti-Choice fire by confirming to them that ProChoicers want women to be the final arbiters of life and death, or ‘play God’.  Besides, there is no need to treat women who are pregnant any differently than women who aren’t, except to address the special circumstances surrounding pregnancy.  Such as domestic violence and the greater vulnerability to injury during an assault. 

  • julie-watkins

    I would like to address this, however.  I think, if such laws DID actually exist that distinguished between wanted, unwanted or untenable pregnancies, that they would undermine even further this core foundation of a woman’s right to choose.

    I agree with this caution. It’s also why I dislike “rare”, and prefer “safe, legal and accessible”. (& Medical standards instead of laws, of course)

  • jodi-jacobson

    though i can see where confusion would lie.

    I do think that a pregnancy that is unwanted and untenable is profoundly different from a wanted pregnancy.  I think most women will go to any lengths to terminate an unwanted/untenable pregnancy if they are intent on doing so; and by contrast most women who want to be pregnant and have a child will go to any lengths to have that come to fruition.

    My point is that it is not “murder” or “homicide” or “assault” for a doctor to perform a legal safe abortion, and therefore there is no rational “self-defense” or defense of other rationale that could be applied, because in the case of an unwanted and untenable pregnancy, we are not talking about a woman who wants to carry to term and deliver a baby.

    i intend to write more on this and hopefully also can clarify.

  • julie-watkins

    The difference is choice, if the woman wants the pregnancy.

    I grow so wearly, though, of people who want to coerce or legislate against abortion who pounce “gotcha” on me wondering how I could supporting that pregnancy when I don’t repent I had my own unborn child killed — it wears me down. :-(

  • arekushieru

    I THINK I see your point.  But, I believe, that still makes a distinction between appropriate and ‘inappropriate’ (medical) care,  which is difficult to distinguish between, especially in the ‘heat of the moment’.  Such as in the case of Dr. Gosnell (because, I think, many of his clients may have believed this WAS the appropriate care, under US law) and in the case of clients seeking abortion care who ARE misdirected by sidewalk counsellors to clinics that seek to stop the abortion.  So, my question is… how do we close the loophole, entirely?