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Posted at 10:43 AM ET, 02/16/2011

South Dakota lawmaker, under fire, is now mulling changes to "justifiable homicide" unborn proposal

By Greg Sargent

South Dakota state representative Phil Jensen -- who unexpectedly found himself in the center of a national firestorm yesterday over his proposal to expand the state's definition of "justifiable homicide" to apply to killings in defense of the unborn -- now appears ready to back down.

Jensen tells me he is eyeing changes to the language of his bill that would make it airtight that abortion providers could not be targeted in any "justifiable homicide" protecting fetuses from the procedure.

Jensen was aggressively defending the bill all day yesterday, arguing that its current language only applied to illegal acts and adamantly insisting that it couldn't be applied to the killing of abortion providers. But now, his 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.

"There's no way in the world that I or any other representatives wish to see abortion doctors murdered," Jensen told me. "So we're looking at some language that will include that. We're looking at some language that would protect abortion providers."

Jensen said he's meeting with the state Attorney General this morning to discuss how to change the bill. He promised to reveal any agreed-upon changes after the meeting, so stay tuned for that.

It's still possible, of course, that he and the Attorney General may decide to leave the bill the way it is. But he seemed a bit flustered and chastened by the national media controversy that engulfed him yesterday, and he seemed to allow that the law as currently written is not as airtight as it needs to be.

"You're going to have crazies out there," he said. "Crazies do crazy things."

UPDATE, 12:43 p.m.: Jensen tells me he is considering the following change to the language of the proposal (the new part is in bold):

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 that is unlawful and 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.

That would make it clear that "justifiable homicide" can only apply in response to an unlawful act, which would obviously not include abortion, which is legal.

By Greg Sargent  | February 16, 2011; 10:43 AM ET
Categories:  abortion  
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Comments

Many Americans claim to believe abortion is the same thing as murder. Their refusal to stop it by violence suggests to me they know it isn't. See Holy Prepuce!'s article "Why Aren't There More Scott Roeders" (http://holyprepuce.blogspot.com/2011/02/why-arent-there-more-scott-roeders-or.html) for why most people won't kill abortion providers, even if South Dakota makes it legal.

Posted by: fakedude2 | February 16, 2011 11:04 AM | Report abuse

"You're going to have crazies out there," he said. "Crazies do crazy things."

No comment.

Posted by: ChuckinDenton | February 16, 2011 11:10 AM | Report abuse

""Jensen tells me he is eyeing changes to the language of his bill that would make it airtight that abortion providers could not be targeted in any "justifiable homicide" protecting fetuses from the procedure.""

Why doesn't he just drop the language?

Posted by: Kevin_Willis | February 16, 2011 11:13 AM | Report abuse

fakedude posted:

"Their refusal to stop it by violence suggests to me they know it isn't."

It should suggest to you that opponents are also law abiding citizens.

Posted by: mark_in_austin | February 16, 2011 11:18 AM | Report abuse

Why doesn't he just drop the bill?

It's not like there are already such laws on the books in South Dakota, or anything:


22-16-34. Justifiable homicide--Resisting attempted murder--Resisting felony on person or in dwelling house. Homicide is justifiable if committed by any person while resisting any attempt to murder such person, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is.

http://www.theatlantic.com/national/archive/2011/02/terrorism-and-magical-thinking/71321/

Posted by: pragmaticagain | February 16, 2011 11:19 AM | Report abuse

Is it just me or does the statute say that murdering someone who is committing a felony upon your house would be justifiable homicide?

Posted by: ashotinthedark | February 16, 2011 11:44 AM | Report abuse

ashot, don't you recall that burglary is a property crime?

I am sick in bed. Tell me if you know [I do not] whether Ms. Sherrod was a "public" person for defamation purposes.

Posted by: mark_in_austin | February 16, 2011 11:48 AM | Report abuse

If he excludes those who provide legal medical procedures, then who is the bill aimed at. How can a pregnant women determine that someone is trying to kill her fetus, or how can anyone else determine that such an attempt is about to happen, so that they can shoot the person, before they commit the crime?

All in all, this Phil Jensen sounds like a complete moron, who though he had figured out a clever way to frighten abortion providers.

Posted by: Liam-still | February 16, 2011 11:55 AM | Report abuse

This is what the Republicans call "citizen government"... When ignorants like this guy get their hands on lawmaking tools, bad things happen.

We need experts. Intelligent people. Big picture thinkers. Professionals.

Not narrow minded idiots.

Running our local, state, and federal governments.

Posted by: ronnieandrush | February 16, 2011 11:55 AM | Report abuse

Is Minority Report the name of the movie, where people are rounded up for crimes that they are going to commit in the future?

This Phil Henson appears to believe that he can give the green light for people to murder anyone they suspect is going to attack a fetus, in the future.

Even Phil Henson will not be safe,under his own law, because anyone can claim that they felt he was going to attack a fetus in the near future.

Posted by: Liam-still | February 16, 2011 12:06 PM | Report abuse

All, good stuff from Adam Serwer on how Rand Paul is no Russ Feingold:

http://voices.washingtonpost.com/plum-line/2011/02/rand_paul_doesnt_get_to_be_rus.html

Posted by: Greg Sargent | February 16, 2011 12:06 PM | Report abuse

If this is not about abortion providers, isn't it a solution in search of a problem. I mean, how many times has that wild scenario about the gal who blows away her man becuase he's about to kick her in her preganant belly actually happened? Has it EVER happened?

(Well considering that this is S. Dakota, who knows.)

Posted by: Virginia7 | February 16, 2011 1:01 PM | Report abuse

ashot, don't you recall that burglary is a property crime?

I am sick in bed. Tell me if you know [I do not] whether Ms. Sherrod was a "public" person for defamation purposes.

------------------------------------
Yes, mark, I do recall that, but does the bill as presently written require you to be in fear or your life etc or just that a felony be committed against your house? I'm really just being frivalous here. I'm less concerned about whether that's legally necessary than the fact that it just seems funny.

As for Ms. Sherrod, I know libel/slander cases often determine public officials are public figures/persons. Is the Gertz case still the proper analysis? There are public figures for all purposes which Ms. Sherrod would not be, but there are also public figures for limited purposes. There may be a decent argument that her speech made her a public figure for limited purposes particularly since the libel/slander was limited to the speech and the issue of race which she talked about in the speech. I am not familiar enough with the case law to know how much water that argument holds, but on its face it seems like a reasonable argument.

Posted by: ashotinthedark | February 16, 2011 2:00 PM | Report abuse

ashot, thanks. I do no work in the area and have no reason to read that body of case law. Appreciate the response, which was more than I knew.

Posted by: mark_in_austin | February 16, 2011 2:27 PM | Report abuse

She was fired because of the doctored tapes. I doubt if even public figures can have their character assassinated, with blatant falsehoods.

Posted by: Liam-still | February 16, 2011 2:28 PM | Report abuse

"She was fired because of the doctored tapes. I doubt if even public figures can have their character assassinated, with blatant falsehoods."

Liam- You are correct, even if she is a public figure, she can still sue, she just has to prove actual malice. If what the poster on the Morning Plum said was true with respect to what was said by Ms. Sherrod prior to the clip, she may be able to prove malice.


Posted by: ashotinthedark | February 16, 2011 2:37 PM | Report abuse

"She was fired because of the doctored tapes. I doubt if even public figures can have their character assassinated, with blatant falsehoods."

Liam- You are correct, even if she is a public figure, she can still sue, she just has to prove actual malice. If what the poster on the Morning Plum said was true with respect to what was said by Ms. Sherrod prior to the clip, she may be able to prove malice.


Mark & Liam- if interested, this is a decen primer on the subject that I just ran across: http://law.jrank.org/pages/8243/Libel-Slander.html

Right after I passed the bar, I had not been sworn in yet, a boss asked me to write a complaint for libel against a newspaper that had published some unsavory things about him. He was definitely a public figure and the statements were true, but he wasn't bothered by either of those rather large legal barriers. I haven't touched libel law since then.

Posted by: ashotinthedark | February 16, 2011 2:43 PM | Report abuse

This is bizarre. Why are you spending time talking to this guy? This amendment is not designed to assist law enforcement efforts but to continue to politicize the issue.

Posted by: wswest | February 16, 2011 4:49 PM | Report abuse

the number of cases in which a woman reasonably fears that an assault endangers the life of her fetus, but could not reasonably conclude that her own life was in danger is roughly zero.

and in any event, absent a means of retreat or the ability to overcome the assault with non lethal force (which you must employ if available no matter what), you are not required to endure a physical assault even if it's not likely to lead to your death until the attacker drops from exhaustion.

this was a political stunt to get on the pro-life celebrity list. nothing more, nothing less. the author cannot point to any case in SD, or any constituent's request to solve a problem, that led to this silly bill.

Posted by: JoeT1 | February 16, 2011 5:08 PM | Report abuse

The new language, insofar as it means anything at all, is just as much an invitation to murderous wingnuts as before. If I'm a doctor performing an abortion in a facility where someone has blocked a fire exit, that's an unlawful manner of performing an abortion. (For that matter, it's an unlawful manner of performing amnio, or any number of other diagnostic procedures carrying risk to a fetus that could raise a violent forced-birther's ire.)

There are perfectly good examples out there of this kind of law written to exclude abortions. The refusal to follow those examples says it all.

Posted by: paul314 | February 17, 2011 9:41 AM | Report abuse

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