There's a lot of confusion over South Dakota's SB 1171, a law proposed by state Rep. Phil Jensen that would expand the definition of "justifiable homicide" to include anyone attempting to harm an unborn child. Jensen claims his bill is not aimed at abortion providers, saying it is intended to apply to cases, for example, in which an angry ex-boyfriend is beating a woman's abdomen to kill the fetus. Yesterday, Slate's Dave Weigel made the argument, as did Jensen, that the bill only applies to "illegal" activity, and because abortion is legal, abortion providers would not be targeted. TAP's Adam Serwer basically got it right when he said that pretending the bill isn't about abortion providers is stupid, and it helps to look at the text of the proposed law (the underlined portions are what would be added under Jensen's bill):
Section 1. 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...
Section 2. 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.
I spoke with Talcott Camp, deputy director of the ACLU Reproductive Freedom Project. Camp explained that Section I of the bill "adds a legal activity to a list of illegal activities." In her reading, there's nothing stating that the activity already has to be illegal. While Jensen denies this, he said today that he will consider changing the language of the bill. Apparently, he knows he doesn't have a good argument.
The law contains other gray areas as well. In Section II, Jensen's bill would amend the current code to protect those who commit murder in defense of an unborn child if there is design to commit a "felony" -- and South Dakota's mountain of abortion restrictions could provide just such a justification. For example, I asked Camp what would happen if someone were planning to perform a late-term abortion, which is against the law in South Dakota. Would murder of the provider be justified then? Basically, it's not entirely clear from the text.
Part of the danger -- and probably the goal -- of the bill is to create confusion and open up the law to interpretation when it comes to abortion. It's not about anything else, says Camp: "There is no way to cause a miscarriage that isn't already a felony already protected under current law." The bill is meant to menace pregnant women and abortion providers and to give a green light to extremists. With Republicans in charge of a record number of state legislatures as well as the House of Representatives, I don't predict this will be the last bill like this to try to sneak by unnoticed.