SD Rep. on Justifiable Homicide Bill: “This Has Got Nothing to Do With Abortion”

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My story today on a measure in South Dakota that would expand the definition of “justifiable homicide” to include killings that are intended to prevent harm to a fetus—which pro-choice groups fear could be interpreted as making it legally defensible to kill an abortion provider—has caused quite a stir.

The bill’s sponsor, Rep. Phil Jensen (R), spoke to Mother Jones on Tuesday morning, after the story was published. He disagreed with this interpretation of the bill, claiming that it is simply meant to “bring consistency to South Dakota statute as it relates to justifiable homicide.” This echoes the argument he made in the committee hearing on the bill last week. “If you look at the code, these codes are dealing with illegal acts. Now, abortion is a legal act. So this has got nothing to do with abortion.” Jensen also aggressively defended the bill in an interview with the Washington Post‘s Greg Sargent on Tuesday morning.

Even if one accepts Jensen’s argument—which is a stretch, given the long list of anti-abortion advocates called to testify in favor of it—the bill is, in the very least, an attempt to classify a fetus as a person. Fetal personhood measures are a tactic often used by the anti-abortion movement to give the fetus the same set of rights as a person—setting the precedent, of course, to interpret abortion as murder.

Further, whatever the “intent” Jensen had for the bill, given the bill’s vague language, it certainly leaves itself open to the interpretation that defense of a fetus qualifies as “justifiable homicide.” It also provides legal justification for the kind of extremists who would seek to kill an abortion doctor. Then there’s the fear element. Anti-abortion lawmakers know they don’t actually have to make it technically legal to kill a doctor—merely opening up the possibility of that interpretation in hopes of may discourage doctors from offering the service in the state. Given the history of violence against providers, this is no insignificant issue.

And Jensen’s argument that this law wouldn’t apply in the case of the killing of an abortion provider belies the fact that the South Dakota legislature has tried multiple times to make abortion illegal in the state. It is currently legal, but not for a lack of trying on the part of lawmakers like Jensen. Jensen is also a cosponsor of the other bill I mentioned in the story that would force women to seek counseling at a Crisis Pregnancy Center—a measure clearly intended to discourage women from following through with an abortion.

The bill’s opponents in the state legislature also consider it a dangerous measure that could make killing abortion doctor permissible. “This bill sets a dangerous precedent to supporters of choice everywhere,” said Rep. Kevin Killer (D), one of only three votes against it in committee last week. As it is written, said Killer, the measure “provides no protection” for against individuals who believe they are trying to harm the fetus. It also sets a dangerous precedent. “This will have a profound impact on states everywhere if the language of this bill stands,” said Killer.

A vote on the measure is scheduled for 2:30 Central today.

UPDATE: The vote on the bill has reportedly been moved to Wednesday.

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DEMOCRACY DOES NOT EXIST...

without free and fair elections, a vigorous free press, and engaged citizens to reclaim power from those who abuse it.

In this election year unlike any other—against a backdrop of a pandemic, an economic crisis, racial reckoning, and so much daily crazy—Mother Jones' journalism is driven by one simple question: Will America will move closer to, or further from, justice and equity in the years to come?

If you're able to, please join us in this mission with a donation today. Our reporting right now is focused on voting rights and election security, corruption, disinformation, racial and gender equity, and the climate crisis. We can’t do it without the support of readers like you, and we need to give it everything we've got between now and November. Thank you.

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