South Dakota Shelves Unconscionable Justified Homicide Bill

South Dakota's legislature has shelved a bill that would have made being an abortion provider far more risky and provided a legal defense of justifiable homicide for persons that kill to protect the life of an unborn person.

A state bill to expand the definition of justifiable homicide in South Dakota to include killing someone in the defense of an unborn child was postponed indefinitely Wednesday after an uproar over whether the legislation would put abortion providers at greater risk.

The House speaker, Val Rausch, said that the legislation had been shelved, pending a decision on whether to allow a vote, amend the language or drop it entirely. A spokesman for Gov. Dennis Daugaard said, “Clearly the bill as it’s currently written is a very bad idea.”

The bill, approved by the House Judiciary Committee last week on a 9-to-3 party-line vote, establishes in part that “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.”

The phrasing caused concern and disbelief on both sides of the abortion debate, with activists in the abortion rights and anti-abortion movements calling the language poorly conceived at best, and perhaps an incitement to violence. The bill was cheered, though, by those anti-abortion activists who argue that the use of violence is justified to stop doctors from carrying out abortions.

The anti-abortion backers in the South Dakota legislature heavily amended a bill (HB1171) that originally would have provided a different set of legal defenses for justified homicide.

The original bill language, which is here, is a completely different piece of legislation than what we were discussing on the dead thread:

Section 1. It is an affirmative defense to a prosecution for homicide as defined in § 22-16-1 or assault as defined in § 22-18-1 or 22-18-1.1 that the defendant is a pregnant woman who used force or deadly force against another to protect her unborn child if:

(1) Under the circumstances as the pregnant woman reasonably believes them to be, she would be justified under § 22-16-35 in using force or deadly force to protect herself against the unlawful force or unlawful deadly force she reasonably believes to be threatening her unborn child; and
(2) She reasonably believes that her intervention and use of force or deadly force are immediately necessary to protect her unborn child.

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.

The amended legislation opened a Pandora's box for mischief and would have opened the door to open season on abortion providers.

The justifiable homicide statute as it was heavily amended and revised was written with several alternative clauses that are independent of each other.

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.

Therefore, by studying the sentence structure of the changes, homicide would be justifiable if committed by any person:

1. while resisting any attempt to murder such person; or
2. to harm the unborn person of such person in a manner to a degree likely to result in the death of the unborn child; or
3. to commit any felony upon him or her or upon or in any dwelling house in which the person is located.

 The other statute (22-16-35) operates in much the same way when you take into account the alternative clauses:

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

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:

1. there is reasonable ground to apprehend a design to commit a felony; or
2. to do some great personal injury,

and

imminent danger of such design being present.

The amendments to the latter statute would permit justifiable homicide when great personal injury is involved, such that a felony is not required for justification. That's an end run around the fact that abortion is a constitutionally protected right.

The anti-abortion groups will try again, and they may try a similar tact to amend the justified homicide statutes to allow a legal defense for the murder of doctors who perform abortions as justified to protect the life of an unborn child. That kind of legal argument has been attempted by those who murdered abortion doctors, including the bastard who killed Dr. Tiller.