By Kate Sheppard | Mother Jones | Feb. 15, 2011
A law under consideration in South Dakota would expand the definition of "justifiable homicide" to include killings that are intended to prevent harm to a fetus—a move that could make it legal to kill doctors who perform abortions. The Republican-backed legislation, House Bill 1171, has passed out of committee on a nine-to-three party-line vote, and is expected to face a floor vote in the state's GOP-dominated House of Representatives soon.
The bill, sponsored by state Rep. Phil Jensen, a committed foe of abortion rights, alters the state's legal definition of justifiable homicide by adding language stating that a homicide is permissible if committed by a person "while resisting an attempt to harm" that person's unborn child or the unborn child of that person's spouse, partner, parent, or child. 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 did not return calls to his home or his office requesting comment on the bill, which is cosponsored by 22 other state representatives and four state senators.
"The bill in South Dakota is an invitation to murder abortion providers," says Vicki Saporta, the president of the National Abortion Federation, the professional association of abortion providers. Since 1993, eight doctors have been assassinated at the hands of anti-abortion extremists, and another 17 have been the victims of murder attempts. Some of the perpetrators of those crimes have tried to use the justifiable homicide defense at their trials. "This is not an abstract bill," Saporta says. 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," the South Dakota Campaign for Healthy Families warned in a message to supporters last week.
The original version of the bill did not include the language regarding the "unborn child"; it was pitched as a simple clarification of South Dakota's justifiable homicide law. Last week, however, the bill was "hoghoused"—a term used in South Dakota for heavily amending legislation in committee—in a little-noticed hearing. A parade of right-wing groups—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 testified in favor of the amended version of the law.
Jensen, the bill's sponsor, 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.
UPDATE: The bill has been changed. The original version is here: (PDF). The new version (PDF) is drastically different. The most important change is the elimination of the ability for spouses, children, or parents of a pregnant woman to use the "justifiable homicide" defense if they claim they were trying to prevent harm to an unborn child. The new version also adds clarifying exceptions: the "justifiable homicide" defense cannot be used for "the defense of human embryos existing outside of a woman's body," and does not apply in cases where the woman was using force as less than a last resort in the defense of a fetus.
"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." The major change to the legislation also caught abortion rights advocates off guard. "None of us really felt like we were prepared," she says.
Sara Rosenbaum, a law professor at George Washington University who frequently testifies before Congress about abortion legislation, says the bill is legally dubious. "It takes my breath away," she says in an email to Mother Jones. "Constitutionally, a state cannot make it a crime to perform a constitutionally lawful act."
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.
The South Dakota legislature has twice tried to ban abortion outright, but voters rejected the ban at the polls in 2006 and 2008, by a 12-point margin both times. Conservative lawmakers have since been looking to limit access any other way possible. "They seem to be taking an end run around that," says state Sen. Angie Buhl, a Democrat. "They recognize that people don't want a ban, so they are trying to seek a de facto ban by making it essentially impossible to access abortion services."
South Dakota's legislature is strongly tilted against abortion rights, which makes passing restrictions fairly easy. Just 19 of 70 House members and 5 of the 35 state senators are Democrats—and many of the Democrats also oppose abortion rights.
The law that would legalize killing abortion providers is just one of several measures under consideration in the state that would create more obstacles for a woman seeking an abortion. Another proposed law, House Bill 1217, would force women to undergo counseling at a Crisis Pregnancy Center (CPC) before they can obtain an abortion. CPCs are not regulated and are generally run by anti-abortion Christian groups and staffed by volunteers—not doctors or nurses—with the goal of discouraging women from having abortions.
A congressional investigation into CPCs in 2006 found that the centers often provide "false or misleading information about the health risks of an abortion"—alleging ties between abortion and breast cancer, negative impacts on fertility, and mental-health concerns. "This may advance the mission of the pregnancy resource centers, which are typically pro-life organizations dedicated to preventing abortion," the report concluded, "but it is an inappropriate public health practice." In a recent interview, state Rep. Roger Hunt, one of the bill's sponsors, acknowledged that its intent is to "drastically reduce" the number of abortions in South Dakota.
House Bill 1217 would also require women to wait 72 hours after counseling before they can go forward with the abortion, and would require the doctor to develop an analysis of "risk factors associated with abortion" for each woman—a provision that critics contend is intentionally vague and could expose providers to lawsuits. A similar measure passed in Nebraska last spring, but a federal judge threw it out it last July, arguing that it would "require medical providers to give untruthful, misleading and irrelevant information to patients" and would create "substantial, likely insurmountable, obstacles" to women who want abortions. Extending the wait time and requiring a woman to consult first with the doctor, then with the CPC, and then meet with the doctor again before she can undergo the procedure would add additional burdens for women—especially for women who work or who already have children.
The South Dakota bills reflect a broader national strategy on the part of abortion-rights opponents, says Elizabeth Nash, a public policy associate with the Guttmacher Institute, a federal reproductive health advocacy and research group. "They erect a legal barrier, another, and another," says Nash. "At what point do women say, 'I can't climb that mountain'? This is where we're getting to."
Due to an editing error, an earlier, updated version of this article that was briefly available online stated that exemptions had been added to the bill after Mother Jones inquired about the legislation. That was wrong. Sorry.
People for the American Way, a major progressive advocacy group, has issued a statement condemning the judiciary committee's version of 1171.
UPDATE 2: Jensen is considering adding specific protections for abortion providers to his bill, he told the Washington Post's Greg Sargent on Wednesday morning. He plans to meet with the South Dakota state attorney general on Wednesday morning to discuss potential changes to the bill. "There's no way in the world that I or any other representatives wish to see abortion doctors murdered," Jensen told Sargent. "So we're looking at some language that will include that. We're looking at some language that would protect abortion providers." Jensen's "decision to consider changing the bill amounts to an admission that the proposal may be flawed and perhaps not as clear cut as he insisted," Sargent writes. He has more here.