Is South Dakota About to Legalize Pro-Life Terrorism?

[UPDATED]

One of the stories making the rounds the last few days relates to pending GOP-sponsored legislation in South Dakota which recently made it out of committee by a 9-3 vote that would expand the definition of “justifiable homicide” to include killing in the defense of one’s “unborn child.”  This legislation is made even more seemingly threatening by the fact that South Dakota defines an “unborn child” as existing from the moment of conception and the fact that in ardently pro-life South Dakota it is almost certain to pass.  As such, the reporting on the legislation has generally characterized it as being an attempt to legalize the killing of abortion providers and as “essentially legaliz[ing] terrorism,” and People for the American Way’s press release expresses even more outrage:

“The attempt to legalize the murder of abortion providers exposes the uncompromising zealotry of the anti-choice movement. A real ‘pro-life’ movement would respect the rights and judgment of women and certainly would not enable the murder of health care providers. I urge South Dakota legislators to examine their consciences before voting on a bill that would force women to seek illegal and unsafe abortions, and endanger the lives of health care providers.”

These claims immediately set my bullshit detector off.  While I have no doubt that, especially within deeply conservative state legislatures, there may be a handful of extremists willing to introduce legislation that would legalize the murder of abortion providers, it is unfathomable that a majority, much less 3/4, of even the most conservative state legislature would do so at this time in history.

So it was no surprise to me when I then read that the sponsor of the legislation claims no such outcome is either intended or – in light of Roe v. Wade – even possible.  Instead, the sponsor, Phil Jensen, describes the purpose and target of the legislation thusly:

Jensen insisted that the bill’s primary goal is to bring “consistency” to South Dakota criminal code, which already allows people who commit crimes that result in the death of fetuses to be charged with manslaughter….  When I asked Jensen what the purpose of the law was, if its target isn’t abortion providers, he provided the following example: “Say an ex-boyfriend who happens to be father of a baby doesn’t want to pay child support for the next 18 years, and he beats on his ex-girfriend’s abdomen in trying to abort her baby. If she did kill him, it would be justified. She is resisting an effort to murder her unborn child.”

This doesn’t settle the matter, though.  Whatever the understood intent of the measure, the actual language of the statute may well suggest a far broader application than that intent, or may simply be poorly drafted.  This requires a look at the actual language of the statute, in context.  As it turns out, the legislation, which amends two separate sections of South Dakota’s criminal code, is in fact quite poorly drafted, at least if it is to be unassailably clear that the murder of an abortion provider is not justifiable.  An amendment to make this more clear would certainly be a prudent idea.  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.

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.

And I think other constructions are entirely possible.   Start with the first section of the bill (changes made to the already established justifiable homicide statute are underlined):

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.

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.”*

Now we move on to the second, trickier section:

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.

Several interpretive issues arise with this section since it is largely a defense of others statute.  For our purposes, though, we can at least safely ignore the justification of “reasonable ground to apprehend a design to commit a felony” since abortion providers are performing a legal service by definition.  Additionally, we can safely assume that “unborn child of any such enumerated person” means “unborn child carried by such enumerated person” since we’ve established that this is the meaning that must be attached in the first section of the legislation and, absent a specifically identified separate definition, it is proper to interpret identical language contained in the same statute as having a consistent meaning.

But even with these assumptions, we are left with the fact that the legislation justifies homicide by a mother’s spouse, parent, or child in the “lawful defense” of the unborn child she is carrying if that person reasonably believes the unborn child to be in imminent danger of great personal injury.  Since South Dakota defines an unborn child as a person (though not a natural person), abortion would quite likely be defined as “great personal injury” to the unborn child.

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.

[UPDATE: Commenter BlaiseP notes this piece from Greg Sargent indicating that the legislation’s sponsor is going to amend the first section of the legislation to state:

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 that is unlawful and 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.

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.  The proposed amendment seems to achieve this, although I note that it does not seem to affect the second section of the legislation, which I thought was a bit more complicated in terms of discerning its application to the homicide of an abortion provider.

Lastly, let me also make clear that I don’t think the intent of this legislation is just to correct an inconsistency in South Dakota law or to make sure that a woman may use lethal force to deter an assault on her womb.  There is clearly also an intent to further institutionalize the notion of fetus-as-rights-bearing human.  But that’s a far cry from an intent to justify the murder of abortion providers.]

*Interestingly, if this interpretation holds, it implicitly recognizes the unborn child as being part of the mother’s body.