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South Dakota Moves To Legalize Killing Abortion Providers

A bill under consideration in the Mount Rushmore State would make preventing harm to a fetus a "justifiable homicide" in many cases.

| Tue Feb. 15, 2011 6:00 AM EST

South Dakota's legislature is strongly tilted against abortion rights, which makes passing restrictions fairly easy. Just 19 of 70 House members and 5 of the 35 state senators are Democrats—and many of the Democrats also oppose abortion rights.

The law that would legalize killing abortion providers is just one of several measures under consideration in the state that would create more obstacles for a woman seeking an abortion. Another proposed law, House Bill 1217, would force women to undergo counseling at a Crisis Pregnancy Center (CPC) before they can obtain an abortion. CPCs are not regulated and are generally run by anti-abortion Christian groups and staffed by volunteers—not doctors or nurses—with the goal of discouraging women from having abortions.

A congressional investigation into CPCs in 2006 found that the centers often provide "false or misleading information about the health risks of an abortion"—alleging ties between abortion and breast cancer, negative impacts on fertility, and mental-health concerns. "This may advance the mission of the pregnancy resource centers, which are typically pro-life organizations dedicated to preventing abortion," the report concluded, "but it is an inappropriate public health practice." In a recent interview, state Rep. Roger Hunt, one of the bill's sponsors, acknowledged that its intent is to "drastically reduce" the number of abortions in South Dakota.

House Bill 1217 would also require women to wait 72 hours after counseling before they can go forward with the abortion, and would require the doctor to develop an analysis of "risk factors associated with abortion" for each woman—a provision that critics contend is intentionally vague and could expose providers to lawsuits. A similar measure passed in Nebraska last spring, but a federal judge threw it out it last July, arguing that it would "require medical providers to give untruthful, misleading and irrelevant information to patients" and would create "substantial, likely insurmountable, obstacles" to women who want abortions. Extending the wait time and requiring a woman to consult first with the doctor, then with the CPC, and then meet with the doctor again before she can undergo the procedure would add additional burdens for women—especially for women who work or who already have children.

The South Dakota bills reflect a broader national strategy on the part of abortion-rights opponents, says Elizabeth Nash, a public policy associate with the Guttmacher Institute, a federal reproductive health advocacy and research group. "They erect a legal barrier, another, and another," says Nash. "At what point do women say, 'I can't climb that mountain'? This is where we're getting to."

Due to an editing error, an earlier, updated version of this article that was briefly available online stated that exemptions had been added to the bill after Mother Jones inquired about the legislation. That was wrong. Sorry. 

People for the American Way, a major progressive advocacy group, has issued a statement condemning the judiciary committee's version of 1171.

UPDATE 2: Jensen is considering adding specific protections for abortion providers to his bill, he told the Washington Post's Greg Sargent on Wednesday morning. He plans to meet with the South Dakota state attorney general on Wednesday morning to discuss potential changes to the bill. "There's no way in the world that I or any other representatives wish to see abortion doctors murdered," Jensen told Sargent. "So we're looking at some language that will include that. We're looking at some language that would protect abortion providers." Jensen's "decision to consider changing the bill amounts to an admission that the proposal may be flawed and perhaps not as clear cut as he insisted," Sargent writes. He has more here.

UPDATE 3: Jensen met with South Dakota attorney general Marty Jackley Wednesday morning and now says he may drop the bill entirely, the Rapid City Journal reports. Any consideration of the measure has been postponed to next Tuesday while Jensen decides on his next move. Another option under consideration, according to the Journal, is "amend[ing] the bill to make it clear that abortion providers don't fall under HB1171's purview." Jensen could do that pretty easily:

Where HB1171 says homicide is justifiable while resisting an attempt to harm a fetus "to a degree likely to result in the death of the unborn child," Jensen could insert four words: "to a degree that is unlawful and likely to result..."

"If Representative Jensen is proposing a change in language, it’s a much needed step in the right direction," Sarah Stoesz, the head of Planned Parenthood for the Dakotas, tells Mother Jones. The American Civil Liberties Union has issued a statement attacking the bill, and People for the Ethical Treatment of Animals has announced plans to erect a billboard riffing off the controversy in Pierre, the state capital. In addition, Commonweal, a Catholic magazine that generally opposes abortion rights, has endorsed critics' reading of the bill.


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