Jillian Rayfield February 15, 2011, 1:15 PM

Killing a doctor who performs abortions in South Dakota may soon be, in some circumstances, legally justifiable — that is, if a bill passed out of committee in the state House of Representatives on Monday, which makes it a “justifiable homicide” for someone to kill someone attempting to harm an unborn child, becomes law.

State Rep. Phil Jensen (R), who introduced the bill, denied that the it would open the door to killing abortion doctors, since abortion is legal. “This code only deals with illegal acts, which doesn’t include abortion,” he told TPM.

The legislation passed out of committee along party-lines with a vote of 9-3.

Jensen cited a South Dakota law currently on the books that includes killing “an unborn child” as part of the definition for manslaughter. He told TPM he’s “trying to bring some consistency to South Dakota” with this new language.

“There is a time and a place where you can defend yourself and it may result in the death of someone who’s attacking you,” Jensen continued.

As an example, Jensen described a scenario in which an “ex-lover or ex-spouse who doesn’t want to pay child support,” and so confronts the pregnant woman and “begins to beat on their abdomen and try to abort their baby.” This would “give protection for those who come to the aid of a pregnant woman.”

Even though the law already protects people (including, presumably, pregnant women) who commit murder in self-defense, and those who might commit murder while defending someone else, Jensen simply argued: “It protects not only the woman, but also the life of the unborn child.”

Law Professor Robert Weisberg, Director of the Stanford Criminal Justice Center, told TPM Jensen is either being “disingenuous or backpedaling” when he argues that the law only applies to illegal acts, and therefore not abortion, because “unless I’m misreading it, that’s not in the statute. Maybe the court would read it into a statute.” He added that any criminal defendant who killed someone performing an abortion would make the argument that the law protects them. The abortion distinction is “just not in the statue.”

Weisberg continued that some states, like California, have laws still on the books that make it crime of murder to kill a fetus. But because of Roe V. Wade, any criminal conviction of a woman for an abortion would be unconstitutional. If a state like South Dakota made it a viable defense for someone who believes they are defending an unborn child, he said, “federal law can’t force the state to treat that as murder.”

“Federal law can tell the states what they’re not allowed to punish. It can’t tell the states what they must punish,” Weisberg said.

Kate Sheppard of Mother Jones first reported on Tuesday that HB 1171 would amend the current law to include the following language (bold parts are new):

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.

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.

Vicki Saporta, the president of the National Abortion Federation, argued to Mother Jones that in practice,”this is not an abstract bill,” and could invite “misguided extremist [to invoke] this ‘self-defense’ statute to justify the murder of a doctor, nurse or volunteer.”

Jensen said the bill will go to a vote Tuesday at 2:30 PM EST. (Late Update: The vote has been moved to Wednesday)

Late Update: The pro-choice group NARAL sent TPM the following statement on the bill:

South Dakota lawmakers have the moral obligation to protect reproductive-health care professionals who are providing legal medical services to women,” said Nancy Keenan, president of NARAL Pro-Choice America. “We call upon the bill’s sponsor to insert language that explicitly protects abortion providers from violence.

Editor’s Note: This post has been edited since it was first published.

Abortion, South Dakota