Is South Dakota About to Legalize Pro-Life Terrorism?


Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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60 Responses

  1. Sounds like the talking point of the day.

    * no — within is not the same thing as “part of”.Report

    • * no — within is not the same thing as “part of”.

      The Constitutionally-compliant interpretation falls apart if you interpret it as “within” instead of “part of.” The first section applies only to certain circumstances where one is defending oneself. If you treat it as simply “within,” then you are converting it to a defense of others provision.

      If they want it interpreted as “within,” then they would have to remove the unborn child protection entirely from that section, though they could keep it in the second section.Report

  2. Avatar Pat Cahalan says:

    But the slope, Mark… for God’s sake… the slope! It’s so slippery! Don’t you see where this leads? DOWN THE SLOPE!

    FWIW, I suspect that this is in fact not an unbiased attempt to clarify South Dakota’s legal code. And I further suspect that the language is intended precisely to set a stage for additional legislation down the road. I doubt this will have any major change within my lifetime.

    But I’m unconvinced that this slope is in fact, slippery. It’s covered in glue and tar paper. It’s the unslipperiest slope in U.S. politics.Report

    • I agree that the motives here are far from just what Spencer acknowledges – at minimum, they’re also trying to further institutionalize the notion of fetus-as-child. But these motives just don’t extend to “hey, wouldn’t it be great if people could go walking around shooting up abortion clinics?”

      I also completely agree about this being a slope that just isn’t going to slip, or at least not at its core. There will certainly be battles fought around the edges, but it will be pretty rare that these battles make any significant changes.

      I actually happen to think that some of them, such as the one presently before us, ultimately wind up bolstering the pro-choice side of things more than the pro-life side, if only because their need to work within the confines of Roe demands that they emphasize that the “choice” is ultimately the woman’s. This statute and the various homicide statutes dealing with the murder of an unborn child/fetus/zygote/whatever all deal with making sure that once the woman has made her choice, that choice is respected.Report

      • > This statute and the various homicide statutes
        > dealing with the murder of an unborn child/
        > fetus/zygote/whatever all deal with making
        > sure that once the woman has made her choice,
        > that choice is respected.

        Well, *that* can’t be. It’s out of South Dakota!

        Okay, I’m done with the sarcasm for today 😉Report

        • I know you understood what I was getting at, but there should be a big “even though it’s unintentional and purely incidental” at the start of that sentence.Report

          • Avatar ThatPirateGuy in reply to Mark Thompson says:

            Justifiable homicide hasn’t been the preferred ‘moral justification’ of doctor murders for years now. It is a commonplace argument in extreme anti-abortion rhetoric.

            Years of bad faith actions means that people who try to pass laws like this don’t get charitable readings.Report

            • They don’t deserve a charitable reading.

              On the other hand, it’s not a major salvo in the culture wars. It’s not even a border skirmish. It’s basically bloviating.Report

            • If the sponsor says it’s not intended to protect killings of abortion providers, and the legislation – however poorly drafted – does not in fact protect killings of abortion providers, then there’s really no reason to conclude that the sponsor or those who support the law are trying to justify the killing of abortion providers.

              It doesn’t even require a particularly charitable reading of the legislation to reach that conclusion – just a reading that conforms to existing (non-abortion-related) precedent.

              Surely you don’t think that 3/4 of the South Dakota legislature thinks that the murder of abortion providers is justifiable.Report

              • Oh, no.

                But I do think that 3/4 of South Dakota’s legislature does honestly believe in the moral value of the fetus and they will do what they can to codify that into the legal framework of the state.

                I really don’t think this is about boyfriends beating up on a fetus.

                That said, I don’t think that what this *is* about is a terribly big deal.Report

              • That comment of mine was in response to TPG – I don’t think there’s really any daylight between you and I on this.Report

              • Avatar ThatPirateGuy in reply to Mark Thompson says:

                Mark, in the context of a movement that puts forward “conscience clauses” that would allow a hospital to let a woman die rather than perform an abortion, has pharmacists refuse to fill prescriptions for clotting medicine to a woman who has already had the abortion, and is in general known to lie their pants off, why should I believe that they don’t intend to send a dog whistle to extreme groups without caring if it inspires another violent attack?Report

              • Dog whistles are another issue altogether. I tend to think that dog whistles are seen far more often than they actually exist, but I also tend to think I’m not very good at distinguishing between what is and is not intended as a dog whistle; that, I try to leave up to others.

                What I do know is that as originally written, this legislation wasn’t going to result in killers of abortion providers getting off scot-free on grounds of justifiable homicide, even if that fact could have and should have been made more clear. I also know that there is no way on the FSM’s Green Earth that this legislation was intended to allow that to happen.

                Lastly, I know that whatever the actual intent and no matter how much they seek to define a zygote/fetus/unborn child as a fully-functioning human being, the effect of laws like these is ultimately to strengthen the principle that the choice that matters is the mother’s alone.Report

              • I’m going to agree with Pat here. I think the legislature had other motives but not the ones that the Left are trying to pin on them. Wouldn’t the conversation have been so much more intellectually interesting if they had attacked the more logical motives instead of creating a kerfuffle over nothing?Report

              • Yes, it would have been. Of course, that might have required some sort of self-examination on the part of the curious.Report

              • Avatar ThatPirateGuy in reply to Mike at The Big Stick says:

                I’m not trying to have an interesting conversation. I’m trying to stop wackos from eliminating critical rights for women.Report

              • MarkT nails it here:

                ” There is clearly also an intent to further institutionalize the notion of fetus-as-rights-bearing human.”

                It also points at a contradiction in current theory/law/principle, or at least attempts to define the debate: if the fetus has the rights of a person, are any [innocent] person’s rights—life!—subject to the “choice” of another person?

                As we all know, it’s easier to win a debate if you get to dictate the terms.Report

              • Avatar KenB in reply to ThatPirateGuy says:

                By posting comments on obscure blogs?Report

              • Avatar Jaybird in reply to ThatPirateGuy says:

                Two memes hammering it out is doing something.

                One picks a side and argues for it.

                The argument that “you’re not allowed to oppose this unless you’re killing people” is one that pisses me off.

                Don’t use it. (Yes, I know, it got used against you. I didn’t condone that either.)Report

              • Avatar ThatPirateGuy in reply to ThatPirateGuy says:


                Who were you replying to? I can’t tell because we hit the max for the nesting.Report

              • Avatar Jaybird in reply to ThatPirateGuy says:

                I was replying to KenB.

                I can appreciate the impulse to say something like “you must not really care about issue X if you’re posting about it here rather than being a sniper in Afghanistan, CHICKENHAWK!!!!” and it’s a fun argument to use.

                Yet it remains bullshit.Report

              • TPG, from a liberal perspective resisting the law in SD on the grounds of assigning personhood seems like a more worthwhile fight than trying to claim they want people to start killing abortion providers.

                And of course, as a pro-lifer I have to dispute your contention that it is a ‘critical right’ but I don’t want to hijack this thread.Report

              • Avatar KenB in reply to ThatPirateGuy says:

                Well I guess I should clarify my (reactive) comment, because it was not intended in the way that Jaybird took it. It was supposed to be in response to ThatPirateGuy at 3:29, which I took as saying that this issue was Very Important, too important to worry about having a polite conversation (I’m not sure now that that’s exactly what s/he meant by it, but so it goes). So my comment was just to suggest that however important the issue itself might be, the benefit to the world from one random commenter’s words on a low-traffic blog is likely to be much less than the cost of driving down the level of discourse for the other participants at said blog.

                But I probably overreacted to the comment, possibly due to the pent-up annoyance at the recent Balloon Juice invasion.Report

              • Avatar Jaybird in reply to ThatPirateGuy says:

                But I probably overreacted to the comment, possibly due to the pent-up annoyance at the recent Balloon Juice invasion.

                Oh, dude.

                Don’t get me started.Report

              • That was my charitable reading of KenB. But don’t underestimate the Balloon Juice Effect.

                Viral, insidious, that one’s claim to truth relieves him of all burden of civility. The stuff of savagery.Report

              • Avatar ThatPirateGuy in reply to Mike at The Big Stick says:

                But Mike they are trying to make it ok to kill abortion providers.

                Note that Mark had to refer to the legality of abortion to make this law not apply to them.

                What odds are you going to give me that SD’s leg won’t try to make abortion illegal this session?

                It isn’t that I think all anti-abortion people are violent or ok with violence. I think that they are aping the language and ideas of the violent ones deserves condemnation. I also think the misogyny of treating women like property by only having it apply to people related to her or the father count needs to be shown too.Report

              • > What odds are you going to give
                > me that SD’s leg won’t try to make
                > abortion illegal this session?


                > I think that they are aping the
                > language and ideas of the violent
                > ones deserves condemnation.

                To be fair, can’t this be a cart-and-horse problem? I mean, rhetorical form language can come from the honest, upright, willing-to-debate-it-in-the-public-square pro-lifer and be co-opted by the radical fringe. Do you then need to discard your language on account o’ some fishing idiots?Report

              • “But Mike they are trying to make it ok to kill abortion providers.”

                That’s just nonsense TPG. They are trying to redefine what a human life is – not justify killing abortion providers. It’s basically just building on existing law in places like California where someone can be charged with two counts of murder if they kill a pregnant mother.Report

              • Big Stick Mike hits it here, per the CA Laci Peterson case, where murdering hubby Scott was also formally charged and convicted with the murder of “Baby Conner” Petersen, in utero.


              • Avatar ThatPirateGuy in reply to Mark Thompson says:

                I think 3/4 of it are ambivalent about it/afraid of the “pro-life” vote.

                They don’t all need to be malicious simply incurious. They simply need to not care if a reproductive health specialist is killed. They want to grandstand and show how moral they are unlike those baby killing leftists. They don’t care that they are playing into the hands of anti-abortion terrorists.

                I doubt that this law is even needed for the boyfriend beating.Report

      • “fetus as child”
        What a novel concept, and what an abuse of language.
        “fetal” is a stage of development
        “Fetus” is not a separate type of being but requires an adjective for clarity. “Human fetus” is more accurate. We are, after all, talking about human life.
        Dehumanizing rhetoric is not helpful.Report

    • In the current crisis, there is no slope too slippery nor reductio too absurd.Report

  3. Avatar chip lyon says:

    Which came first, the woman or the egg……?Report

  4. Avatar North says:

    Good analysis Mark. I’m quite ardently pro-choice myself but I consider this particular issue an overwrought nontroversy.Report

    • Avatar Mark Thompson in reply to North says:

      I’m starting to realize that one could make a career out of exposing non-troversies.Report

      • Avatar Rufus F. in reply to Mark Thompson says:

        I have gotten forwarded the Mother Jones story a few times now on Facebook and I did make the same case you’re making- trying to establish fetal personhood- yes; trying to legalize the murder of abortion providers- no. I do want to suggest a charitable reading of the people who forwarded me the story, including dear friends: I think they’re freaked out and misreading instead of trying to score a talking point.Report

        • Avatar Rufus F. in reply to Rufus F. says:

          Incidentally, this probably goes for other friends of mine who forward me right-wing nontroversies. There is an element of your-worst-fears-are-coming-true to these things.Report

          • Avatar Mark Thompson in reply to Rufus F. says:

            Absolutely. I’ve got no doubt that a lot of people are genuinely freaked out by this. I seem to remember someone writing something about how trust relationships generally, reasonably, and understandably govern much of what we think we know. I think this is especially true nowadays, when we have less and less direct, in person, contact with people outside our immediate circle of friends and family (who are probably pretty likely to think like us). The story Jaybird told last week about talking people off the ledge by asking “you know, our friend X is a Y – do you really think that he’s ok with killing puppies” is, I suspect, becoming less and less realistic. We have less opportunities to know Xs who are Ys, and even when we do, it’s less common for us to know that they’re Ys.

            My issue instead is with the professional activists whose only job is to find stories to rile up their base but can’t ever seem to be bothered to verify those stories before they push them.Report

  5. Avatar Jason Kuznicki says:

    When I consider how bad state legislators so often are at their jobs, the enduring popularity of localism just astonishes me.Report

  6. Avatar BlaiseP says:

    Thanks: this is as good an analysis as I’ve seen of this, considering the huffing and puffing I’ve seen elsewhere. It seems Jensen is walking his dog back, detailed by Greg Sargent over here.Report

    • Avatar Mark Thompson in reply to BlaiseP says:

      Thanks for the compliment. I’m glad that Jensen is looking to make that amendment to make this crystal clear. Even though the original version would not have created a defense for the homicide of abortion providers, it was, as I said, still quite poorly drafted. Oddly, the amendment proposed in your link only seems to apply to the first section of the statute.

      This is interesting because of the two provisions, I thought it was the more clearly prohibitive of homicide against an abortion provider. However, it was also the provision that caused most of the hubbub (probably since the other provision at least contained the word “lawful,” though not in the most clearly-used manner).Report

      • Avatar BlaiseP in reply to Mark Thompson says:

        I’ve always contended if you want a good law, let your enemies write the first draft: they will always make a botch of it.

        As biology, medicine and genetics advance, thoughtful scholarship will provide us with the ethical considerations we need as a society. The politicians are the least-useful voices in this debate: let them make good laws from what may be derived from those considerations.

        Laws are partly formed for the sake of good men, in order to instruct them how they may live on friendly terms with one another, and partly for the sake of those who refuse to be instructed, whose spirit cannot be subdued, or softened, or hindered from plunging into evil.. That’s Plato. Jeebus, if ever there was a collection of un-instructables, it would have to be the zealots on both sides of the ‘Bortion Debate.Report

  7. However, I’m not at all sure that an honest interpretation of the legislation would result in legal justification for the murder of an abortion provider.

    Oh well by all means let’s pass the law as written then and when the next Dr. Tiller is murdered, we can let the courts decide the actual legal language. That would be the reasonable and pruden thing to do.


  8. Avatar Jonathan says:

    Hey Mark, thanks for doing a bit of digging. I, too, imagined the uproar was a little off target, but didn’t really feel like investigating it too much. I’m glad you did that for the rest of us.Report

  9. Avatar Jaybird says:

    When Ron Paul was running for president, one of my Ronulan LJ friends endorsed him and was immediately excoriated by pretty much every single female friend he had. His comments section asked about women bleeding out in back alleys and so on.

    I’ve got to say, it struck me as odd.Report

  10. Avatar Steve S. says:

    “As I said above, even though the legislation would not have justified homicide against abortion providers, it was still quite poorly drafted and should have been more clear about this.”

    I guess my question at this point would be, why propose this amended law, whether it’s well-worded or not, in the first place? Do they really need a law to make it justifiable to shoot someone who is beating the shit out of a woman’s abdomen? I mean, if a guy was beating a woman’s abdomen with a lead pipe in South Dakota would anybody really question someone else’s shooting of that individual?Report

    • Avatar Mark Thompson in reply to Steve S. says:

      Do they need it for practical purposes? No. It’s a purely symbolic law that’s intended to reinforce the definition (already established in South Dakota law) of fetus-as-person. There is arguably an inconsistency – albeit a meaningless one in practice – between the inclusion of an unborn child as a potential victim of manslaughter and the failure to include an unborn child as a victim in whose defense one may justifiably kill another.

      So this is mainly just an attempt to consolidate a legislative victory won by the pro-life side a long time ago.Report

    • Avatar David Cheatham in reply to Steve S. says:

      Indeed, this is just dog-whistle nonsense.

      It’s functionally impossible for someone to be endangering the life of an a fetus without endangering the life of the woman carrying it. At least, if they’re endangering it in a way that a self-defense claim would work…they could poison it or something, but you don’t normally have to kill poisoners to stop them, and that wouldn’t work in court.

      The only way this important is if you believe this is happening. Maybe pro-lifer believe that abortion doctors are drugging women and doing abortions without their consent?

      Although that still doesn’t make a lot of sense. Legally, if someone drugs someone else, and starts cutting them up, you can probably just shoot them in justifiable homicide anyway, even if they claim they were a doctor and just committing _really_ aggravated assault that they intended the person to live through. (This whole thing is surreally unlikely, though.)

      Does anyone else find it odd that the ‘defense of other’ clause only lets you do it for family? Surely, if someone is about to murder a total stranger, you can legally shoot them too.Report

  11. Avatar Boonton says:

    Say Roe was overturned and the state made abortion illegal. It would seem like killing abortion providers would be permitted by this law. Perhaps we have a case where we have a back door to legalized lynch mobs with this law, ready to be triggered when and if Roe is reversed.Report

  12. Avatar Bob says:

    From The Times 2/17/2011

    Bill shelved

    “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..