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Trying to puzzle out the effects of South Dakota’s new “justifiable homicide” bill

I posted on the All Our Lives Facebook wall earlier today about a Mother Jones article entitled, "South Dakota Moves To Legalize Killing Abortion Providers."  They keep updating and removing information from that article, which made it very confusing to try to figure out what was going on, so I went directly to the South Dakota Legislature's web site for more information. As introduced, the bill would have provided a pregnant woman an affirmative defense against homicide or assault charges if she used force to protect her unborn child against an unlawful assault. So far, so good.

The bill as amended and passed out of committee on February 9 contains very different language:


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.

This link should clarify the order of events.

I apologize for the confusion in the Facebook post.

Now that we know what's in the bill, let's talk about it. I don't see anything in Section 2 of this bill or in Chapter 22-16 of the South Dakota code that would limit this definition of "justifiable homicide" to instances when the unborn child is threatened by an unlawful assault. In other words, I am not a lawyer, but I don't see how this wouldn't give Scott Roeder a defense if George Tiller had: a) been in South Dakota and b) scheduled to perform an abortion on Roeder's wife (or mother, daughter, mistress, or servant (!)). If that's the case, it's a huge problem, for reasons I've discussed before. Maybe the "lawful defense" clause makes the difference; lawyers, please feel free to weigh in.

2 thoughts on “Trying to puzzle out the effects of South Dakota’s new “justifiable homicide” bill”

  1. Perhaps they could simply clarify what they mean by saying, "except in a legal and consentual abortion?" I doubt that the legislature intended to legalize killing abortion providers-I think that the law was intended to, as you say, protect women or others who use force to protect an unborn child from assault.

  2. I read today that the bill's sponsor is considering adding clarifying language, which is good. I do think that the bill as written could provide cover for the likes of Scott Roeder, and needs to be changed.

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