# Is South Dakota considering legalizing the killing of abortion providers? **URL:** \ **Category:** Great Debates\ **Created:** [February 15, 2011, 11:18pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512 "2011-02-15T23:18:25Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 16, 2011, 5:59pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/81 "2011-02-16T17:59:27Z")
> [@spark240](#): > > Again, isn’t that exception provided by 22-16-35’s clause about “design to commit a felony”? A legal abortionist has no such design. It would be, if that language were not followed by, “…or do great personal injury”. No mention of whether the injury is criminal in nature, and I assume we can all agree that terminating a fetus is likely to result in significant personal injury to the fetus. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 16, 2011, 6:16pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/82 "2011-02-16T18:16:42Z")
> [@Whack-a-Mole](#): > > Not seeing how the proposed SD law does anything here. > > If the guy punches Peggy Pregnant it is a done deal. After that you have retaliation for him punching her. How would anyone know beforehand to stop him? > > If he is repeatedly punching her such that a bystander may now think to stop him why do current laws not suffice? Because (apparently, and not a result of review South Dakota law) lethal force would not be permitted in that situation, only proportionate force. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 16, 2011, 6:20pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/83 "2011-02-16T18:20:22Z")
> [@Duke](#): > > How many cases were in South Dakota? None. > [@](#): > > How many cases involved self-defense? Many. > [@](#): > > How many cases involving abortion rights were you involved in? None. > [@](#): > > “Experience” means nothing unless it’s the right kind of experience. My point exactly. > [@](#): > > What experience? How do we know about your experience? For all I know, you’re just some schlub on the internet who found a WestLaw subscription. > > Seriously, I’m going to believe a law professor whose body of work I can Google over “some guy on the Internet”. Every. Single. Day. There are other attorneys present and posting. Do any of them believe that my history of posting here is reasonably explained by being untrained in the law but having a Westlaw subscription? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 16, 2011, 6:29pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/84 "2011-02-16T18:29:00Z")
> [@Ravenman](#): > > Actually, as I read the brief quote from Professor Rosenbaum and **Bricker** ’s arguments, they are essentially saying the same thing: that laws on the same subject have to be read together to come to any meaningful understanding. > > The Professor states, ““It takes my breath away,” she says in an email to Mother Jones. “Constitutionally, a state cannot make it a crime to perform a constitutionally lawful act.”” I take this to mean that the state does not have the authority to overturn Roe vs. Wade by futzing around with justifiable homicide statutes. Correct. I don’t agree with the broad statement, but as applied to this law, that line is correct: because there is a well-settled right to procure an abortion, a state cannot vitiate that right by criminalizing it, or by de-criminalizing violent efforts to stop it. To the extent that this law is ambiguous, it must be read _in pari materia_ with federal abortion law, harmonizing and giving full effect to each. Which is why I mentioned the principle of _in pari materia_ in my first post. > [@](#): > > **Bricker** has said that this bill has to be read with the understanding that the constitutional question of abortion has pretty much been settled, and therefore the statute can only be read to pertain to situations like the “punch the pregnant girl in the stomach” one. (Though I may be inserting a few words in his mouth there.) Correct. > [@](#): > > I think it is pretty clear in terms of APPLYING the law that the state cannot declare open season on OB/GYNs, and that the law could really only be used to justify the acts of someone who is trying to stop someone from beating up a pregnant woman. Correct. > [@](#): > > I think it is pretty clear how the courts would interpret the statute, but the question in my mind is what the bill’s author is trying to accomplish. Is he trying to leave some ambiguity in the minds of the unwashed masses who don’t spend lots of time trying to understand the law, but who wouldn’t mind if some “abortion doctors” got attacked? Is the esteemed sponsor of the bill is trying to whip up extremist violence by throwing out some red meat to his political base? I do not exclude the possibility that the sponsor is trying to simultaneously scare the living shit out of doctors who perform these legal medical services, while knowing that anyone who kills a doctor would still end up going to jail. > > My vote, at this point, is that the bill’s sponsor is perfidious asshole politician. Being too lazy to research it myself, my question would be: has there been any recent case in the area of someone attacking a pregnant woman, something that might have motivated this? When I first read the bill, I thought of a couple of recent cases in my area, where a pregnant woman was attacked by someone trying to (and in one case, succeeding in) stealing her unborn child. If there’s nothing that could have caused the legislature to think this was a problem that needed to be fixed, and nothing in the floor debate or speeches to cause us to think otherwise… then you might be right. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [February 16, 2011, 6:34pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/85 "2011-02-16T18:34:34Z")
> [@Bricker](#): > > Because (apparently, and not a result of review South Dakota law) lethal force would not be permitted in that situation, only proportionate force. What’s wrong with proportionate force? SD would rather a person just shoot someone than restraining them (assuming restraint or other, non-lethal means was a practical option)? If the only practical option is to shoot the guy then again, I think the current self-defense laws suffice. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 16, 2011, 6:34pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/86 "2011-02-16T18:34:37Z")
> [@Duke](#): > > **Oak** , I respect you. But **Bricker** is the one who claimed we were ignorant, and he had knowledge. It’s up to him to show his work. If Oakminster, or GFactor (with whom I have corresponded privately and collaborated on legal-themed Staff Reports), or one of the other attorneys here expressed doubts about my bona fides, I’d have some concern. I have eleven years worth of posting history, and I don’t believe it could be duplicated by someone who was playing pretend with a Westlaw subscription. Your doubts? Not so much of a concern. You used to follow me around calling me “former counselor,” a theme you’ve returned to here, as though the fact that I stopped practicing law meant that I had a frontal lobe excised and lost all memory of the experience. I’m not sure why it bothers you so much, and I’m not really sure I care. ---
**Author:** ![Duke](https://avatars.discourse-cdn.com/v4/letter/d/e8c25b/32.png) [@Duke](https://boards.straightdope.com/u/Duke)\ **Post date:** [February 16, 2011, 6:38pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/87 "2011-02-16T18:38:57Z")
**Bricker** , the point I am making is simply this: You argue that your argument is superior to Sara Rosenbaum’s because you have experience in criminal law, and she does not have said experience. That presupposes a number of things: 1. You have experience in criminal law. 2. Because of this experience, your arguments are necessarily superior to those of Sara Rosenbaum’s and her experience. 3. Criminal law is primary to this argument. Well, I’m saying I don’t have evidence of 1 and 2, and you haven’t proven 3. You can say you were a defense lawyer, and that I can agree with. But what I don’t know is how relevant your experience is in this case. Now I can see exactly what Professor Rosenbaum’s experience is with health policy and law, but your claim is at best an _assertion_. I can see that Professor Rosenbaum has worked and lectured extensively on abortion law and has consulted on health policy with state and national governments. I think you’ll have to forgive me when I say that I’m not impressed with the argument that a former defense lawyer knows more about the effect of proposed health law and policy than a current distinguished professor at a top-tier law school. And then we’ve got presupposition #3. What you’re saying here essentially is that because there are criminal liabilities to the violation of this law, that only criminal law knowledge is essential in discussing this case. As **Ravenman** intimated, there are also questions of constitutionality with regards this proposed law. It would seem to me, as an admitted layman, discussion of the constitutional element supersedes discussion of the criminal law element; after all, if the law is unconstitutional, discussing it from a criminal law standpoint seems rather moot. Now, Sara Rosenbaum has a long published record in constitutional law as regards to health policy and is widely considered an expert in the field. Again, forgive me if I take her word over yours on this matter. In short, I raise a devil’s advocate argument (and I’ll agree I went over the top, but to prove a point): if you’re arguing from experience, it’s incumbent on you to prove you’re the one with experience. It was one thing when you claimed more knowledge than us schlubs, but claiming you had a better understanding of the issue than Sara Rosenbaum was a little…much. ---
**Author:** ![steronz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steronz/32/11765_2.png) [@steronz](https://boards.straightdope.com/u/steronz)\ **Post date:** [February 16, 2011, 6:39pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/88 "2011-02-16T18:39:33Z")
> [@Bricker](#): > > When I first read the bill, I thought of a couple of recent cases in my area, where a pregnant woman was attacked by someone trying to (and in one case, succeeding in) stealing her unborn child. Link? I have… questions… regarding the mechanics of this. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 16, 2011, 6:40pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/89 "2011-02-16T18:40:42Z")
> [@Whack-a-Mole](#): > > What’s wrong with proportionate force? SD would rather a person just shoot someone than restraining them (assuming restraint or other, non-lethal means was a practical option)? If the only practical option is to shoot the guy then again, I think the current self-defense laws suffice. Again simply speculating about SD law specifically… … but as a general principle, in self-defense or in defense of another (both affirmative defenses to be asserted at trial), the force used in defense must be proportionate to the force used to attack. But there are exceptions. “Castle Doctrine” laws provide that in certain situations, such as in your home, you may use deadly force without fear of conviction, _even if the trespasser was not using deadly force against you._ This law creates a similar exception – an “Unborn Castle Doctrine,” if I may be trusted to coin a corny phrase. It says that you no longer have to consider or worry about proportionate force and whether your choice is reasonable – you may defend an unborn child (or fetus, if you prefer) with deadly force, period. You may disagree that this is wise (just as many people disagree that “Castle Doctrine” laws are wise) but it’s an explanation that would give the law effect without vitiating rights under _Roe_. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 16, 2011, 6:46pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/90 "2011-02-16T18:46:38Z")
> [@steronz](#): > > Link? I have… questions… regarding the mechanics of this. Here [is the case](http://www.foxnews.com/us/2009/12/08/police-say-maryland-woman-tried-cut-unborn-baby/?test=latestnews) I was thinking of. Sadly, it’s not unique by any means: [There’s more](http://www.thebostonchannel.com/r/20220097/detail.html) than [one case](http://www.zimbio.com/Andrea+Curry-Demus/articles/XxWNBeHDYOi/Baby+cut+womb+turns+1+grandfather+grieves) to [link to.](http://www.foxnews.com/story/0,2933,374261,00.html) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 16, 2011, 6:48pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/91 "2011-02-16T18:48:12Z")
> [@Duke](#): > > **Bricker** , the point I am making is simply this: > > You argue that your argument is superior to Sara Rosenbaum’s because you have experience in criminal law, and she does not have said experience. That presupposes a number of things: > > 1. You have experience in criminal law. > 2. Because of this experience, your arguments are necessarily superior to those of Sara Rosenbaum’s and her experience. > 3. Criminal law is primary to this argument. > > Well, I’m saying I don’t have evidence of 1 and 2, and you haven’t proven 3. You can say you were a defense lawyer, and that I can agree with. But what I don’t know is how relevant your experience is in this case. Now I can see exactly what Professor Rosenbaum’s experience is with health policy and law, but your claim is at best an _assertion_. I can see that Professor Rosenbaum has worked and lectured extensively on abortion law and has consulted on health policy with state and national governments. I think you’ll have to forgive me when I say that I’m not impressed with the argument that a former defense lawyer knows more about the effect of proposed health law and policy than a current distinguished professor at a top-tier law school. > > And then we’ve got presupposition #3. What you’re saying here essentially is that because there are criminal liabilities to the violation of this law, that only criminal law knowledge is essential in discussing this case. As **Ravenman** intimated, there are also questions of constitutionality with regards this proposed law. It would seem to me, as an admitted layman, discussion of the constitutional element supersedes discussion of the criminal law element; after all, if the law is unconstitutional, discussing it from a criminal law standpoint seems rather moot. Now, Sara Rosenbaum has a long published record in constitutional law as regards to health policy and is widely considered an expert in the field. Again, forgive me if I take her word over yours on this matter. > > In short, I raise a devil’s advocate argument (and I’ll agree I went over the top, but to prove a point): if you’re arguing from experience, it’s incumbent on you to prove you’re the one with experience. It was one thing when you claimed more knowledge than us schlubs, but claiming you had a better understanding of the issue than Sara Rosenbaum was a little…much. Fine. What am I saying that contradicts Sara Rosenbaum? ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [February 16, 2011, 6:48pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/92 "2011-02-16T18:48:13Z")
> [@Duke](#): > > [ As **Ravenman** intimated, there are also questions of constitutionality with regards this proposed law. It would seem to me, as an admitted layman, discussion of the constitutional element supersedes discussion of the criminal law element; after all, if the law is unconstitutional, discussing it from a criminal law standpoint seems rather moot. A large part of criminal defense work involves arguing constitutional issues…a search was valid or not, a jury was fairly selected or not, the defendant was or was not coerced into making incriminating statements, the defendant did or did not get to confront the witnesses against him, did or did not have compulsory process to obtain witnesses/evidence on his behalf, did or did not have meaningful access to counsel, other constitutional rights were or were not protected. Here, the bill in question is unquestionably a criminal one, in that it purports to add to the traditional definition of justifiable homicide. Some degree of criminal expertise is needed when considering the potential ramifications…moreso than healthcare policy considerations, in my view. ---
**Author:** ![Duke](https://avatars.discourse-cdn.com/v4/letter/d/e8c25b/32.png) [@Duke](https://boards.straightdope.com/u/Duke)\ **Post date:** [February 16, 2011, 6:56pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/93 "2011-02-16T18:56:42Z")
> [@Bricker](#): > > Fine. > > What am I saying that contradicts Sara Rosenbaum? She is substantively making the same argument as the rest of us: that this proposed law is a “bad law” (the words us laymen would use for “unconstitutional”), yet you paint us as ignorant, uneducated fools who don’t know nothin’ about no legal matters. Because, apparently, this is some criminal law issue which Professor Rosenbaum knows nothing about. Of course, it wasn’t a criminal law issue until you made it one, but still. ---
**Author:** ![Duke](https://avatars.discourse-cdn.com/v4/letter/d/e8c25b/32.png) [@Duke](https://boards.straightdope.com/u/Duke)\ **Post date:** [February 16, 2011, 7:00pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/94 "2011-02-16T19:00:03Z")
> [@Oakminster](#): > > A large part of criminal defense work involves arguing constitutional issues…a search was valid or not, a jury was fairly selected or not, the defendant was or was not coerced into making incriminating statements, the defendant did or did not get to confront the witnesses against him, did or did not have compulsory process to obtain witnesses/evidence on his behalf, did or did not have meaningful access to counsel, other constitutional rights were or were not protected. Here, the bill in question is unquestionably a criminal one, in that it purports to add to the traditional definition of justifiable homicide. Some degree of criminal expertise is needed when considering the potential ramifications…moreso than healthcare policy considerations, in my view. So, what you’re saying is, Professor Rosenbaum is unfit to discuss constitutional law? ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [February 16, 2011, 7:02pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/95 "2011-02-16T19:02:03Z")
The problem with the wording of this law is that it might seem to someone who is inclined to murder an abortion provider to provide a defense. Whether that defense works out well in court, is almost beside the point (the doctor being already dead). Also, given that ambiguities in criminal statutes are generally interpreted in favor of the accused, I think it’s conceivable that this language would provide a viable defense. I agree with **Bricker** that the state can’t criminalize constitutionally protected actions, but I’m not aware of cases that say they have a _duty_ to prosecute anyone, even those who are killing doctors to infringe on the constitutional rights of women. On the other hand, a state law stating “we’re not going to prosecute anyone for murdering a jewish person” would probably be held unconstitutional. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 16, 2011, 7:09pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/96 "2011-02-16T19:09:09Z")
> [@Duke](#): > > She is substantively making the same argument as the rest of us: that this proposed law is a “bad law” (the words us laymen would use for “unconstitutional”), yet you paint us as ignorant, uneducated fools who don’t know nothin’ about no legal matters. Because, apparently, this is some criminal law issue which Professor Rosenbaum knows nothing about. > > Of course, it wasn’t a criminal law issue until you made it one, but still. Um… this wasn’t a criminal law issue until _I_ made it one? Really? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 16, 2011, 7:13pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/97 "2011-02-16T19:13:07Z")
> [@Duke](#): > > Of course, it wasn’t a criminal law issue until you made it one, but still. How so? This is a criminal law. It’s by its very nature a criminal law issue. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [February 16, 2011, 7:13pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/98 "2011-02-16T19:13:47Z")
> [@Duke](#): > > So, what you’re saying is, Professor Rosenbaum is unfit to discuss constitutional law? No, not at all. I’m suggesting that her expertise does not appear to include criminal practice, and I feel criminal practice experience is important in evaluating the possible ramifications of a criminal statute. If I were somehow going to have to represent a defendant under some theory arising under this statute, I would be more inclined to consult **Bricker** , who has relevant experience in criminal defense. Without access to someone with criminal experience, I’d prefer someone with at least civil trial experience over an academic at the trial court level. ---
**Author:** ![Duke](https://avatars.discourse-cdn.com/v4/letter/d/e8c25b/32.png) [@Duke](https://boards.straightdope.com/u/Duke)\ **Post date:** [February 16, 2011, 7:21pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/99 "2011-02-16T19:21:12Z")
> [@Bricker](#): > > Um… this wasn’t a criminal law issue until _I_ made it one? > > Really? Which is more important here, criminal law or constitutionality? Because if the law is unconstitutional, as Professor Rosenbaum implies, why is the criminal law issue a concern? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 16, 2011, 7:25pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/100 "2011-02-16T19:25:50Z")
> [@Duke](#): > > So, what you’re saying is, Professor Rosenbaum is unfit to discuss constitutional law? No one’s saying anyone is unfit. And you paint “constitutional law” as a subject you either know, or don’t. My past experience gives me excellent insight into constitutional law in the criminal context. And as someone who took a class called “Constitutional Law,” as a 1L, I have some minor insight into things like Article III standing requirements. But if someone like Sara Rosenbaum said that based on her experience, there’s a constitutional right to medical care under situations X, Y, and Z, i wouldn’t presume to toss my experience around to counter hers. We’re both lawyers, but she’s studied health care and society in the legal context, and I haven’t. So don’t focus on the term “constitutional law,” as though one is either an expert, or not. I don’t know Professor Rosenbaum, but I’m willing to bet that if she and I were squared off, Jeopardy-style, and the categories were, “Fourth Amendment Searches,” “Terry Stops,” and “Confrontation Clause Conundrums,” I’d win handily. If the categories were, “Public Health Policy,” “Medical Care and Your Legal Rights,” and “Roe, Casey, and the Constitution,” then I fully expect I’d be leaving with the consolation prize. [Previous page](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512.md?page=4) [Next page](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512.md?page=6)