The Logical Conclusion of the Anti-Choice Position

A South Dakota committee has reported out a bill that would make the murder of anyone attempting to harm an unborn fetus “justifiable homicide.” The bill (changes in bold, with thanks to TPM):

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.

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.

The bill’s sponsor states that, because “this code only deals with illegal acts, which doesn’t include abortion,” it would not permit justifiable homicide of an abortion doctor. But this limitation occurs nowhere on the face of the statute. In fact, the legislature avoided an easy redraft that would eliminate the possibility:

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.

Although this change would neuter the justifiable homicide defense, it would also prevent anyone from reading the law to permit, say, a father to kill a doctor performing an abortion on his daughter. As written currently, this is a possibility.

Shocking, yes. But this bill is entirely consistent with the anti-choice lobby’s position. If abortion is murder, then why shouldn’t the full penal code incorporate it as such?

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10 comments

  1. It’s completely logical and will likely pass. It’s about time too.

    If I were in SD though, I’d be more worried about the “if there is reasonable ground to apprehend a design to commit a felony” part.

    As the law reads any felony, even totally non-violent ones, can be stopped via lethal force.

  2. Although this change would neuter the justifiable homicide defense, it would also prevent anyone from reading the law to permit, say, a father to kill a doctor performing an abortion on his daughter. As written currently, this is a possibility.

    The law was poorly drafted but a whole bunch of lawyers have already weighed in with opinions contrary to yours. My friend Mark Thompson for example (emphasis mine):

    “The critical phrase then is “lawful defense.” Thankfully, this phrase is dispositive. For a defense under this section to be “lawful,” the threat to which the perpetrator is responding cannot be “lawful.” State v. Woods, 374 N.W.2d 92 (S.D. 1985)(killing of homeowner who was acting in lawful defense of his property could not be justifiable homicide even if this resulted in threat of great personal injury to killer). Importantly, it is also not a “lawful defense” to use any violence, even non-lethal violence, unless circumstances “required an immediate response necessary to prevent unlawful force.” State v. Rich, 417 N.W.2d 868 (S.D. 1988).

    In other words, because abortion is legal, the murder of an abortion provider could not be justifiable under this section either; the killer would not be privileged to act in the “lawful defense” of the unborn child because it is unlawful to exercise violence in defense of a lawful act.

    So even though this legislation is drafted poorly, and is drafted by people on the pro-life side of the abortion debate in a state that defines even a zygote as an “unborn child,” there is simply no basis to conclude that it would legalize the murder of abortion providers. The South Dakota legislature is not declaring open season on abortion providers, nor does this legislation move in that direction.”

    http://ordinary-gentlemen.com/blog/2011/02/16/is-south-dakota-about-to-legalize-pro-life-terrorism/

    Mark’s writing is so good because he doesn’t allow his politics to influence his legal interpretations.

    I will also say that your last statement is silly. Some Liberals have deliberately misinterpreted the law in order to make a lousy point i.e that pro-life folks would like abortion providers to be killed. That’s just dumb. We want the law changed so what they do is illegal in most circumstances and they could be prosecuted as such.

  3. Yeah, the lawful defense point works for the second section. The first, though?

  4. You’ll have to read Mark’s post to make sure I’m clipping the right passage but I think he addresses that here:

    “First, as a general rule of construction, statutes will not be interpreted in ways that will require resolution of a Constitutional question unless that is the only possible interpretation. See, e.g., US v. Jin Fuey, 241 U.S. 394 (1916) (“A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.”). If this statute were to be construed as permitting the murder of abortion providers, there would be a clear equal protection problem that would have to be resolved by the courts. So such a construction is possible only if other constructions, lacking Constitutional conflicts, are not possible.”

  5. Nope. Constitutional avoidance is the only way he gets around the first section, and that’s a cop-out, because it doesn’t answer the question.

    My question is, “did South Dakota accidentally legalize murder of abortion doctors?” That answer is yes.

    The other question, “would this stand up in court?”, is answered in the negative by Mark’s point. But mine still stands.

    And I’ll note that I don’t let my politics get in the way of legal analysis either. I’m quite convinced that DC v. Heller was rightly decided, for example. And we’ve previously agreed on the legality of targeted killing, even though I’d really prefer that not be legit.

    1. Doesn’t answer what question? Constitutional avoidance seems to directly refute your claim that this law legalizes the killing of abortion doctors. Are you saying that it doesn’t?

  6. Actually, Mark covered your question more clearly:

    “For this section, I think the big interpretive issue is what is meant by “unborn child of such person.” Does it mean “unborn child such person is carrying” or does it mean “unborn child containing such person’s DNA”? If the former, there is probably no constitutional conflict since it would only justify homicide committed by the mother, and then only “while resisting” the attempt to harm the mother’s unborn child (obviously one who chooses to undergo an abortion is definitionally not “resisting” the abortion). If the latter, then it would require resolution of the equal protection issue because it would justify the murder of an abortion provider where a father opposed the abortion.

    Moreover, that “unborn child of such person” means something akin to “unborn child such person is carrying” is a far more appropriate interpretation even without resorting to the canon of constitutional avoidance. The rest of this particular section pertains only to situations where defense of oneself (as opposed to defense of others) is a justification for homicide. To add a defense of an unborn child one has fathered to this statute would make no sense whatsoever, especially given that this section does not justify homicide in the defense of one’s actually born children. But to add defense of a child one is carrying to the list of justifiable homicides under this section would be perfectly consonant with the rest of the section.

    So at least with respect to this first section, we really have no choice but to interpret “unborn child of such person” as “unborn child such person is carrying.”

    1. No reply? Bummer…

    2. Yeah, otherwise occupied. But I think at the point you’re arguing equal protection issues, you concede the following point:

      SOUTH DAKOTA REPORTED OUT A LAW THAT CAN BE PLAUSIBLY CONSTRUED TO LEGALIZE MURDER OF ABORTION PROVIDERS.

      Also perhaps, here’s the other question. What does the section do absent that interpretation?

      1. It can only be plausibly construed to legalize those murders after willfully ignoring the legal facts surrounding the law. Unless of course by ‘plausibly’ you mean ‘easily misconstrued by liberal bloggers’.

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