Nothing like a suggestion of a murder charge to turn the heat up on the abortion issue

Tonight, Kevin Woster in the Rapid City Journal notes that the State Medical Association is bringing up the "M" word in reference to the "A" issue:

Doctors who perform illegal abortions under the terms of HB1215 could face a first-degree murder charge under revised homicide provisions in South Dakota law, a lawyer for the South Dakota State Medical Association says.

Pierre lawyer Dave Gerdes said in a legal memo written for the association that if HB1215 survives challenges at the ballot and, possibly, in court, it could combine with a revised state homicide statute to pose an ominous legal threat to doctors charged with violating the law.

"It is at least possible that a prosecutor or a court will decide that a physician performing a procedure qualifying as an abortion under the language of the new statute can be prosecuted for first-degree murder," Gerdes wrote in the memo.

In response, the prime sponsor of HB1215 said Thursday that violating the law would be a Class 5 felony, with a maximum penalty of five years in prison. But Republican Rep. Roger Hunt, a lawyer from Brandon, wouldn't rule out the possibility that a doctor could face a murder charge and even the death penalty in certain situations.

"I've never been a state's attorney, but I do know that when you take the life of a human being in our society, every state's attorney is going to look at all potential charges - murder all the way down to manslaughter and aggravated assault," Hunt said.
Read it all here.

Comments

Anonymous said…
This is good. My problem with the right to "above all else" lifers is the belief that it's murder and to be consistent shouldn't it warrant murder charges against the Doc, the Mother and accessory charges against all involved. Don't scream on the corner, Ms. Unruh, unless you back it up by fully arguing your point.

It either is or it isn't. Which is it?

And Lawyer Hunt, how could the act of abortion, if it is the taking of another life, fall under manslaughter charge? We would need to redefine a new form of manslaughter. Reckless, heat of passion, oops, slipped and performed an abortion?

Perhaps I foretell of the next step in the march towards the complete subjudation of women in our society. Everyone in the march to support 1215 should read Margaret Atwood’s the Handmaiden’s Tale
Jake Mortenson said…
"But Republican Rep. Roger Hunt, a lawyer from Brandon, wouldn't rule out the possibility that a doctor could face a murder charge and even the DEATH PENALTY in certain situations."

I am pro-life. Let's kill people who aren't. Wait a second ... what did my first sentence say?
brian aust said…
Good editorial in the Mitchell Daily Republic today - http://www.mitchellrepublic.com/articles/index.cfm?id=15875§ion=homepage - about wedge issues becoming a double-edged sword.

Just a thought.
Anonymous said…
Setting the Record Straight

A woman who has an abortion is not guilty of a crime. The abortionist is guilty of a Class 5 felony.

Here is the section of the law that defines the crime:

No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being. No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being. Any violation of this section is a Class 5 felony.

http://legis.state.sd.us/sessions/2006/bills/HB1215enr.htm

Rep. Al Novstrup
Anonymous said…
Sorry Rep. Novstrup, but our statutes don't function independent of each other. It worries me that you don't seem to understand how the laws you pass work, but I'll try to break it down for you.

1. We have laws that make murder illegal. They allow us to sentence people to life in prison or death for breaking them.

2. Recently, the law was changed to someone who caused the death of an "unborn child" could be charged with murder. Legal abortion is the exception to this law.

3. HB1215 makes abortion illegal, nullifying the exception.

4. Conceivably, if a prosecutor was so inclined, they could charge the doctor or even the pregnant woman with murder, which could result in life in prison or the death penalty.

It may not say it directly in the bill, but that's the crazy thing about our code: it can do things that aren't perfectly spelled out. Even Rep. Hunt admits that a murder charge is conceivable, so I guess we can at least credit him with having some grasp of the consequences of the legislation he supports. He just doesn't care, I guess.

Seriously, legislators should have to pass a high school Government final before they're allowed to serve.
Anonymous said…
2:29 Is spreading misinformation. The law is very clear read it.

Rep. Hunt said the abortionist could be charged with a Class 5 felony (just as the law says.)

The mother can not be charged. Read the law.

Rep. Al Novstrup
Anonymous said…
Al, couldn't the woman be charged with aiding and abetting an abortion, or conspiracy to commit an abortion? For that matter, what about the phys. asst. or even the receptionist, if she scheduled the appointment knowing the intended purpose of the visit. I think such charges would then carry half the penalty of the principle offense.
Anonymous said…
I am trying to understand the logic of the HB 1215 proponents, and I need help. If you (rightfully) believe it isn't OK for a mother to beat her one-day old to death then, if you believe the unborn have the same status as the born, why wouldn't you prosecute the mom who aborts? I'm glad it's not a crime, but you guys seem to me arguing out of both sides of your mouths.

And should you prosecute mothers who drink and smoke or, a better analog to HB 1215, prosecute the person who sells or gives a cigarette or drink to the mom for child abuse or murder?

Switching gears, I hate to bring up reality, but what happens if a couple artificially inseminates (bypassing "God's Plan" in some people's minds) and ends up with seven babies growing in the womb. Nowadays, many parents would selectively "abort" some to give the others a better chance to survive. Is that allowed under HB 1215?

If your cousin or dad rapes you, you still have to carry that baby, right? I have some sort of Napoli exception.

If your baby will die upon being born, you still have to carry that baby, right (and spend nine months hearing people ask if you if you are excited)?
Anonymous said…
What if the baby doesn't have a brain stem as happened to friends of mine, it was horrible. Do you have to carry to term and deliver and take that risk if at 16 weeks you could drive to Minnesota and abort?

Al, go away.
Anonymous said…
Rep. Al Novstrup

Get this, you can be charged with different crimes for the same act. For instance, if you run a stop sign and kill someone, you can be charged with manslaughter even though a stop sign violation is simply a misdemeanor. Sound familiar?

If an unborn child dies in the accident, is there now going to be another charge against the driver?
Anonymous said…
Novstrup #1 clearly doesn't understand the new homicide law. But who cares whether he understands or not. He won't be back in the legislature next year and neither will Novstrup #2.
Anonymous said…
You pro-abortionist jailhouse attorneys are probably the same ones who continue to be handed legal defeat after defeat for your clients by the South Dakota Supreme Court.

Here's the deal with South Dakota statutes. The South Dakota Supreme Court uses the following rule when several statutes seem to have an interest in a factual scenario: “we have often noted that where more than one statute touches upon the same subject matter, we presume that the statute with the more specific language “relating to a particular subject will prevail over the general terms of another statute.” Martinmaas, 2000 SD 85, ¶ 49, 612 N.W.2d at 611 (citing Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17). The Court goes on to state that “[w]here statutes appear to conflict, it is our responsibility to give reasonable construction to both, and if possible, to give effect to all provisions under consideration, construing them together to make them ‘harmonious and workable.’ ” City of Sioux Falls v. Ewoldt, 1997 SD 106, ¶ 14, 568 N.W.2d 764, 767 (citing Wiersma v. Maple Leaf Farms, 1996 SD 16, ¶ 4, 543 N.W.2d 787, 789). By the way that word statute up there refers to both all statutes, including the criminal ones. Also, look to State v. McKay to reinforce this principal in criminal law settings.

Now just what does all that mean? It means that when the intent of the legislature is to punish a doctor for committing an abortion with a Class 5 felony it means just that. Furthermore, the legislature never intended to use the homicide statute to punish the person who performs an abortion. The next thing some underlings may spout off about is something like, “just because the legislature didn’t intend it doesn’t mean a law couldn’t apply!) And of course the pro-abortionists who want so bad to make 1215 look radical would again be wrong. Why, because homicide statutes are particular in nature as to application based on the offense.

One could argue that the homicide statute and 1215 are not conflicting. Ok...then you go right back to the legislative intent analysis, one that this Supreme Court is more than willing to engage in on numerous occasions. Hence the reason why so many in SD think that we generally have judges who are “strict constructionists.” Because we have strict constructionists they will apply the law in the way it was meant to be applied. Meaning that homicide could not be applied to a situation in which 1215 was meant to apply given the aforementioned legal reasoning.

The pro-abortionist want so bad to marginalize 1215 using rather comical arguments, however, like good liberals they will not let facts get in the way of good arguments. First, they attempt to scare off pastors with threats of losing non-tax status, then they use this murder charge stuff, and they said a while back that there were no exceptions beyond the life of the mother exemption built into the law. What will it be next? “If SD passes this law you will have a heart attack!” Or, “if 1215 goes into effect the drought will consume the state for the next 50 years!” I mean how ridiculous can the counter arguments get?
Anonymous said…
Anon 4:24, if the baby doesn't have a brain stem what real hope is there in the parents choosing to murder him or her before he or she is born? Why not carry him or her to term and see if the doctors could possibly be wrong about the baby's chances?

And, hey, look at the possibilities. If the baby doesn't have a brain stem, but manages to survive, maybe someday he or she can be a democrat candidate for office.
Anonymous said…
anon, 9:46, you've just identified the big problem. This isn't "leave it to beaver." We don't all live in a 1950s bedroom community that's picture perfect because nothing else would make it to the screen; people are told by their docs that their child is dead in the womb, that carrying the child to term could kill the mother, etc. I'm assuming...you see the world through your autobiographical screen. How sad for you. Of course, if you never have to think or witness life outside of "your" window, it can seem pretty simple, can't it.

Talk to someone who was pregnant and shown the ultrasounds of a fetus w/no hope, no brainstem, no heart beat at 20 weeks you heartless bast*(*.
Anonymous said…
HB 1215 will go down on November 7th.

Unfortunately, Apa and Schoenbeck won't. They will continue to sneak into your bedroom, raise taxes and support big government. Could someone please run in Lead against Apa? I know you like having him leave town for two months, but, please, help the rest of us.
Anonymous said…
9:39--

First off, while you may disagree with Gerdes' (and Hunt's, since he seems pretty open to the scenario as well) interpretation, just dismissing it out of hand is ignorant. There are a number of attorneys who believe it's a legitimate possibility, and while there are some who don't, that leaves the question open to debate.

Even if, as you say, the supreme court wouldn't read the law as Gerdes did, that still leaves the door open for an over-zealous prosecutor to go after doctors and women until the supreme court gets a case and makes such a determination.

That the legislators failed to think about the consequences of HB1215 is fairly obvious at this point. And that's pretty crappy legislating.
scimitar said…
Anon 9:39, that's apretty lengthy legal brief, but it's flawed.

HB1215 only addresses penalties for people other than the pregnant woman. But it contains no exception to prosecution for the pregnant woman. It is entirely silent as to the pregnant woman's criminal liability.

Because HB 1215 does not address penalties for a pregnant woman and because it does not exempt her from penalties, then prosecutors would be free to prosecute women under the homicide law for the unlawful taking of a life - if HB1215 ever became law.
Anonymous said…
scimitar:

your silly argument is easily disposed of. Since you missed the class regarding probable cause and causation I will not take the time to catch you up. Nonetheless, I will agree with you that prosecutors could charge the woman with a crime. Of course that is a trusim and not an argument.

Hell, they can charge you with murder right now, but that does not mean that they had p.c. to do so.

In the case of a woman who goes in for an abortion there is still no p.c. for a crime. The only law you have to cite would be 1215. Why? Because a normal homicide analysis would not yield p.c. Again, this take us back to last night's analysis.

Scimitar, your logic is circular at best. The hallmark of modern intellectual liberalism.
scimitar said…
Anon 8:09, I fail to see any logic in your position at all. Attorneys Dave Gerdes and Roger Hunt, both Republicans, agree that the homicide law is applicable. So to throw the word "liberal" out there in simple-minded fashion just seems out of place.

Your probable cause tutorial doesn't work either. If HB 1215 were to take effect, abortion would be an unlawful and premeditated murder. To establish probable cause for a homicide prosecution, you would only have to show that the abortion took place and was not necessary to save the life of the woman. For anyone other than you, this is not rocket science. It's not enough to attend the class on probable cause - you have to remain awake and pay attention.

The legal principle that the specific law controls over the general law does not apply in this situation, because HB 1215 did not address the issue of what to do with the woman. So the general homicide law would apply - Just as Gerdes and Hunt acknowledge.
Anonymous said…
If you look past the homicide question, a prosecutor could easily charge the woman getting an abortion with either aiding and abetting or conspiracy. A&A will get them the same punishment as the Dr (class 5) and conspiracy is just a step down (class 6). Check out SDCL 22-3-3 and SDCL 22-3-8; looks to me like all you need is planning, advising, etc to find a pregnant woman guilty with the Dr's underlying crime of causing an abortion.

If you don't have a pregnant woman advising/taking part in the abortion, then it certainly does look like murder by the Doc. SDCL 22-16-1, "Homicide is the killing of one human being, including an unborn child, by another." In this case, Murder one looks like the right fit - SDCL 22-16-4: "Homicide is murder in the first degree [i]f perpetrated without authority of law and with a premeditated design to effect the death of the person killed or of any other human being, including an unborn child." Pretty hard to say that doesn't fit the situation - the Doc is w/o authority of law, with the knowing design to effect the death of an unborn child. Bring on the death penalty analysis...

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