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l : 16 February 2011 • 3:43AM -0500

[LeftLibertarians] South Dakota Moves To Legalize Killing Abortion Providers
by Bill Holmes

Dakota Moves To Legalize Killing Abortion Providers

A bill under consideration in the Mount Rushmore State would make preventing
harm to a fetus a "justifiable homicide" in many cases.

By Kate Sheppard on Tue. February 15, 2011 3:00 AM PDT

*This article **has been

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
has passed out of committee on a nine-to-three party-line
and is expected to face a floor vote in the state's GOP-dominated House of
Representatives soon.
"The bill in South Dakota is an invitation to murder abortion providers."

The bill<>,
sponsored by state Rep. Phil Jensen, a committed foe of abortion
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. *UPDATE: Jensen spoke to *Mother Jones *on Tuesday morning,
after this story was published. He says **that he disagrees with this
interpretation of the bill. "This simply is to bring consistency to South
Dakota statute as it relates to justifiable homicide," said Jensen in an
interview, repeating an argument he made in the committee hearing on the
bill last week. "If you look at the code, these codes are dealing with
illegal acts. Now, abortion is a legal act. So this has got nothing to do
with abortion." **Jensen also aggressively defended the
an interview with the
*Washington Post*'s Greg Sargent on Tuesday morning.*

"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

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
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
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
under law in many
making the protection of a fetus an affirmative defense against a murder

"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
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. (Click
here <> for
an interactive map of abortion restrictions.)

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
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
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
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."

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