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South Dakota Bill Could Make Killing Abortion Providers a “Justifiable Homicide”

South Dakota has been at the forefront of anti-abortion efforts in recent years. The legislature tried to ban all abortions in the state in 2006. This led to a ballot initiative overturning the legislation. The people spoke and said they didn’t want their state turned into a war zone for women. A separate abortion 2008 – this time with an exception for rape – went on the ballot in 2008. Again the people spoke and voted it down.

Now, the legislature has responded with another attack on women and the doctors who provide legal medical services for them.

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.

Since Mother Jones reported on the legislation, the sponsors of the bill altered it radically from the original version. They eliminated the ability for spouses or relatives of the pregnant woman to use a “justifiable homicide” defense; now only the pregnant woman can use it, and there are exceptions to that rule. So sunlight disinfected this bill pretty quickly.

But a closer examination shows that this bill was basically targeted at one person. There are no providers in the state; Planned Parenthood flies in a doctor from outside the state once a week to Sioux Falls. He’s basically fingered as a murderer implicitly with this bill, though they had to dial it back after pressure.

This can be added to all the other restrictions on abortions in South Dakota: required counseling, a 24-hour wait period, an ask to view a sonogram, language that must be read to women discouraging them from getting the abortion. House Bill 1217 also includes even more restrictions. The goal is to deny access, but the inclusion of the “justifiable homicide” language simply seeks to intimidate doctors from putting their life on the line by coming to South Dakota.

Several years ago the Oglala Sioux tribe said they would allow an abortion provider on their property, which is sovereign tribal land, but they’ve said little since then. So women in South Dakota basically have almost no opportunity to access legal medical treatment, and now their one doctor has been implicitly threatened.

What South Dakota and the anti-choice movement has moved toward is making abortion impossible while keeping it nominally legal.

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David Dayen

David Dayen