# 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:** 6
**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, 7:27pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/101 "2011-02-16T19:27:05Z")
> [@Duke](#): > > 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? Do you get what I mean when I say “in pari materia?” ---
**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, 7:27pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/102 "2011-02-16T19:27:44Z")
> [@Duke](#): > > 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? You can’t necessarily break this down so that it fits neatly into some pre-sized little box. Pretty much nobody practices “constitutional law”. Lawyers deal with constitutional issues as they arise within their own practice area. At the moment, I’m arguing some constitutional issues in an unemployment case, different constitutional issues in a food stamp case, and still other unrelated constitutional issues in a divorce/custody fight. Also, the constitutional issues here, if any, are not likely to be raised by a defendant attempting to use the bill as a defense to a murder charge. If such a thing came up during some sort of criminal trial, the prosecution might be inclined to challenge the constitutionality of allowing such a defense… ---
**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, 7:29pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/103 "2011-02-16T19:29:36Z")
Rosenbaum has been quoted with one sentence. I’d certainly want to see her further analysis, especially in light of this update now on the Mother Jones website: > [@](#): > > 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. ---
**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, 7:32pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/104 "2011-02-16T19:32:23Z")
But **Bricker** , that’s exactly what I’m saying here. You’ve made an argument from experience in this thread, and I’m saying that someone with more experience _in this relevant field of constitutional law_ has made a different argument. Now of course you’re welcome to make objections to Rosenbaum’s arguments based on precedent and settled law, and honestly I’d love to hear them. But simply arguing that you’re right here because the rest of us are not as knowledgeable, as you did above, isn’t going to wash here. ---
**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, 7:33pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/105 "2011-02-16T19:33:28Z")
> [@Bricker](#): > > Rosenbaum has been quoted with one sentence. I’d certainly want to see her further analysis, especially in light of this update now on the Mother Jones website: One would have to wait to see what the “language that would protect abortion providers” was before that analysis could be made, though. ---
**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, 7:34pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/106 "2011-02-16T19:34:15Z")
> [@Oakminster](#): > > Pretty much nobody practices “constitutional law”. Lawyers deal with constitutional issues as they arise within their own practice area. At the moment, I’m arguing some constitutional issues in an unemployment case, different constitutional issues in a food stamp case, and still other unrelated constitutional issues in a divorce/custody fight. To back this up, look at the way law school is taught. I took a bunch of Con Law classes… Con Law I - was compulsory, and dealt with the relationships between the branches of government, and the division of powers between the states and the federal government. Con Law II - mainly 14th amendment stuff. Due process and Equal Protection. Criminal Constitutional Law - 4th, 5th, 6th, 7th, & 8th Amendment law First Amendment - Unsurprisingly, free speech & religion The Law & Religion - seminar - again, self explanatory. I think that was all of them. But you neither study, nor really practice Con Law. I mean I guess a First Amendment lawyer does, but he or she probably won’t know jack shit about the 4th amendment compared to a criminal defense attorney. ---
**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, 7:48pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/107 "2011-02-16T19:48:44Z")
> [@Bricker](#): > > Do you get what I mean when I say “in pari materia?” Sort of\*. But in this case it’s an ambiguity that potentially pushes the proposed statute into unconstitutionality. Rosenbaum believes that the law as written is unconstitutional (and I’d like to see a positive statement on that too). Again, I’d like to see exactly why you would argue the opposite. \*You got your legal Latin in my ecclesiastical Latin, I’m afraid. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [February 16, 2011, 7:52pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/108 "2011-02-16T19:52:27Z")
It looks like Rep. Phil Jensen is going to [re-write the bill just a bit.](http://www.rapidcityjournal.com/news/article_352203a6-39f7-11e0-8d66-001cc4c002e0.html) To paraphrase-“Golly, I don’t know _where_ people got the idea that this bill was about abortion providers!” ---
**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, 8:08pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/109 "2011-02-16T20:08:22Z")
I humbly suggest that Rep. Jensen’s re-write is a good indication that even he didn’t feel the bill as written would pass constitutional muster. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [February 16, 2011, 8:21pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/110 "2011-02-16T20:21:12Z")
I’ll take “Potent Potables” for $800, Alex. ---
**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, 8:23pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/111 "2011-02-16T20:23:45Z")
> [@Duke](#): > > I humbly suggest that Rep. Jensen’s re-write is a good indication that even he didn’t feel the bill as written would pass constitutional muster. I hunbly suggest you miss the purpose of laws like these. Having them struck down by the courts isn’t a bad thing for politicians, and may even be a deliberate end of the process. It allows the politician to posture that they tried to do something, the the evil (conservative/liberal/activist/Catholic) court system prevented them, and that people should give him lots and lots of money to try again. However, if public reaction to something is strong enough along the lines of “dude, serious, that’s fucked up,” then the law might have to be changed. ---
**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, 8:26pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/112 "2011-02-16T20:26:01Z")
> [@Duke](#): > > But **Bricker** , that’s exactly what I’m saying here. You’ve made an argument from experience in this thread, and I’m saying that someone with more experience _in this relevant field of constitutional law_ has made a different argument. I’m saying she hasn’t. She has not mentioned any applicable principles of law or statutory construction. She’s said one line, a line I fully agree with as applied here: “Constitutionally, a state cannot make it a crime to perform a constitutionally lawful act.” How is that an argument? ---
**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, 8:40pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/113 "2011-02-16T20:40:43Z")
> [@villa](#): > > I hunbly suggest you miss the purpose of laws like these. Having them struck down by the courts isn’t a bad thing for politicians, and may even be a deliberate end of the process. It allows the politician to posture that they tried to do something, the the evil (conservative/liberal/activist/Catholic) court system prevented them, and that people should give him lots and lots of money to try again. I agree completely. But that doesn’t mean that such laws should go on the books anyway. ---
**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, 8:46pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/114 "2011-02-16T20:46:19Z")
> [@Bricker](#): > > I’m saying she hasn’t. She has not mentioned any applicable principles of law or statutory construction. She’s said one line, a line I fully agree with as applied here: “Constitutionally, a state cannot make it a crime to perform a constitutionally lawful act.” > > How is that an argument? What was your argument? You agreed that the law “could have been drafted better”, then you linked to a news article that stated that the proposed law’s own author was planning to change the wording of the law to make it consonant with existing statutes. In other news: Even the author of the proposed law himself thought it needed significant changes! Is he wrong? ---
**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, 8:57pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/115 "2011-02-16T20:57:23Z")
> [@Duke](#): > > What was your argument? You agreed that the law “could have been drafted better”, then you linked to a news article that stated that the proposed law’s own author was planning to change the wording of the law to make it consonant with existing statutes. > > In other news: Even the author of the proposed law himself thought it needed significant changes! Is he wrong? I said the law could have been drafted better. The law’s author now says it could have been drafted better. So everyone agrees it could have been drafted better. ---
**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, 9:02pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/116 "2011-02-16T21:02:50Z")
Gotta wonder how the rest of us got to be so ignorant, though. Now to reiterate **RNATB** ’s question to you: could you entertain the fact that this proposed law as originally written might have been an attack on legal abortion providers in South Dakota? I’d agree with **villa** that there seemed to have been a sense of political posturing with the original law. ---
**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, 9:07pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/117 "2011-02-16T21:07:49Z")
> [@Duke](#): > > Gotta wonder how the rest of us got to be so ignorant, though. > > Now to reiterate **RNATB** ’s question to you: could you entertain the fact that this proposed law as originally written might have been an attack on legal abortion providers in South Dakota? I’d agree with **villa** that there seemed to have been a sense of political posturing with the original law. Sure. As I said above, I’d feel better about embracing or denying that conclusion with a little more information about what prompted it. But I absolutely admit that it could have been political posturing. ---
**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, 9:41pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/118 "2011-02-16T21:41:29Z")
To be honest I’m starting to lean away from “poorly drafted” and more towards “political stunt.” The article notes that Jensen agreed that “unborn child” was _already_ included in the category of “person” in the existing South Dakota statute on justifiable homicide. When the South Dakota AG advised him to change the law, that left Jensen with two options: 1. make the proposed law only about unlawful harm to an unborn child, which is already covered in the existing statute, or 2. drop the bill entirely. I’d argue that the proposed law as Jensen originally wrote it wasn’t so much “poorly drafted” as “trying to do the impossible.” Either the proposed law wasn’t going to pass oversight, or it wasn’t going to change anything. ---
**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, 9:44pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/119 "2011-02-16T21:44:58Z")
> [@Duke](#): > > I agree completely. But that doesn’t mean that such laws should go on the books anyway. Of course they shouldn’t. And if unconstitutional when they get on the books, they should be struck. It’s a pretty standard technique - pander to the base to show you are trying to fill their impossible demands, and make someone else the bad guy. Whether it is in ridiculous controls on abortion, gun restrictions, anti-pornography measures, immigrant/criminal defendant bashing, endorsing religion… Both sides play this game. Thank God we have a generally competent and honest judiciary, even if I don’t always agree with everything they do. ---
**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, 11:01pm UTC](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512/120 "2011-02-16T23:01:24Z")
> [@villa](#): > > To back this up, look at the way law school is taught. I took a bunch of Con Law classes… > > Con Law I - was compulsory, and dealt with the relationships between the branches of government, and the division of powers between the states and the federal government. > > Con Law II - mainly 14th amendment stuff. Due process and Equal Protection. > > Criminal Constitutional Law - 4th, 5th, 6th, 7th, & 8th Amendment law > > First Amendment - Unsurprisingly, free speech & religion > > The Law & Religion - seminar - again, self explanatory. I have some certain knowledge that half of Civil Procedure I and nearly all of Civil Procedure II are, in a sense, constitutional law classes- which I presume were also compulsory at your school. So count those too. [Previous page](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512.md?page=5) [Next page](https://boards.straightdope.com/t/is-south-dakota-considering-legalizing-the-killing-of-abortion-providers/571512.md?page=7)