SD "Abortion Doctor" Bill

The South Dakota legislature is about to consider the following bill:

FOR AN ACT ENTITLED, An Act toexpand 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:Section1.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. Section2.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.

Critics have said that the bill would make it justifiable homicide to kill an abortion doctor where doing so would prevent an imminent, legal abortion at any stage of pregnancy. The bill's sponsor disputes this. According to TPM, he says that the bill would not apply to an abortion doctor performing a legal abortion because the abortion would not be homicide.On a purely textual reading of the bill, the critics seem to have the stronger argument. The bill does not permit killing someone about to commit "homicide" on a fetus. It permits killing someone about to harm your unborn child "in a manner and to a degree likely to result in the death of the unborn child" (sec. 1) OR who is about to "do some great personal injury" to the fetus of another person (sec. 2).Section 1 appears to only provide a right of self-defense and to extend that right to one's fetus. A woman seeking an abortion would not be the one trying to kill the doctor in defense of the fetus she is about to abort. So this part of the bill is broadly consistent with the sponsor's characterization. But Section 2 extends the right of to kill in self-defense to encompass a right to kill in defense of a limited universe of third parties -- those who are husband, wife, parent, child, master, mistress or "the unborn child of any such enumerated person." If I'm reading the bill correctly, this could easily lead to a situation in which the law would justify the killing of a doctor performing a legal abortion. If a woman is seeking an abortion and her husband (or father or mother) does not approve, that person could kill the abortion doctor (as long as the danger to the fetus is imminent) and then claim the protection of this statute.UPDATE: As a commenter points out below, section 1 could be read to empower fathers to kill an abortion doctor. I had been reading the "such person" language as limiting the right under section 1 to the person undergoing an assault that also threatens the fetus (with section 2 covering aid by third parties), but I agree with the commenter that it could be read as applying to fathers as well. Needless to say, this further cuts in favor of the critics of the bill and against the sponsor's understanding.

Eduardo M. Peñalver is the Allan R. Tessler Dean of the Cornell Law School. The views expressed in the piece are his own, and should not be attributed to Cornell University or Cornell Law School.

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