In a World Where the Stated Motives for HR-1171 Matched the Real Ones, This Argument Would Work

Dear CF,

I’m happy to announce that HR-1171—the amendment that would (as an unfortunate side-effect) legalize the assassination of abortion providers—is, according to the rationale its sponsor has offered in its support, superfluous and unnecessary. Here’s why:

The South Dakota amendment reads thusly (the key parts are in bold):

FOR AN ACT ENTITLED, An Act to expand the definition of justifiable homicide to provide for the protection of certain unborn children.


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.

You might think this amendment had something to do with abortion. Luckily, you are wrong! It has nothing whatsoever to do with abortion, as Phil Jensen, the bill’s sponsor, explains. And that’s not all! Rep. Jensen has proposed to change the language of the bill to forestall the (legal) murdering of doctors and other abortion providers—an outcome he deems “shocking” and undesirable although, he notes, “crazies” will be crazy. This has nothing to do with abortion, he insists, and proposes the following edit so that there are no misunderstandings and you cannot kill an abortion provider because abortion is legal (suspenseful music). I repeat: this bill has nothing to do with abortion. See how the part in bold fixes everything?

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 that is unlawful and 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.

Here’s how Jensen explains the concerns undergirding the original amendment (and that concern is NOT abortion, in case you were wondering):

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 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.”

Now, it would seem the good Rep. has forgotten either basic anatomy or the transitive property, which combined yield the following self-evident truths:

1) The ex-girlfriend’s abdomen in the above example belongs to her.

2) As a direct consequence of 1), an attack on her abdomen is attack on her person, meaning that she’s already protected under current law:

20-9-8.   Right to use force in defense of persons or property. Any necessary force may be used to protect from wrongful injury the person or property of one’s self, or of a wife, husband, child, parent, or other relative, or member of one’s family, or of a ward, servant, master, or guest.

“Any necessary force” includes homicide.

Therefore, the hypothetical ex-girlfriend killing the ex-boyfriend in self-defense has the law on her side. Unless he’s insisting that the hypothetical ex-girlfriend’s intention, in killing her ex-boyfriend, is to protect only the fetus and not herself (a subtle distinction to some, less so for others), his friends may want to bring that law to Congressman Jensen’s attention so that he can rest easy at night, safe in the knowledge that the abdomens of women have recourse, should they be subjected to battery.

He will undoubtedly retire the bill as a result.



ETA: Ha! The Well-Timed Period has pretty much written this very post, and more thoroughly, too; they point out that 22-16-34 and 22-16-35 both pertain even more directly to the hypothetical ex-girlfriend’s actions “justifiable homicide”. Here–thanks to them—is the updated version of the bill. The new language stipulates that the defense can only be applied to the pregnant woman:

“Section 2. The affirmative defense provided in section 1 of this Act does not apply to:

(1) Acts committed by anyone other than the pregnant woman;

(2) Acts where the pregnant woman would be obligated to retreat, to surrender the possession of a thing, or to comply with a demand before using force in self-defense. However, the pregnant woman is not obligated to retreat before using force or deadly force to protect her unborn child, unless she knows that she can thereby secure the complete safety of her unborn child; or

(3) The defense of human embryos existing outside of a woman’s body.”

I’d be curious to know what legal experts think of the section I put in bold. It looks to me like the language there, while purporting not to obligate a pregnant woman, is actually creating a situation where she could be prosecuted for NOT retreating/complying when a retreat/compliance could have saved her unborn child.

ETA 2: Bill has been tabled, by a vote of 61 to 4. When a disaster has been averted, it’s appropriate to cheer. Hurrah! And I salute Kate Sheppard at Mother Jones, whose story brought national attention to this underhanded piece of … legislation.

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