Press "Enter" to skip to content

Hansen: Post-Roe, South Dakota Will Treat Abortion as Homicide

I wondered Tuesday what Representative Jon Hansen (R-25/Dell Rapids) means when he says he will use a Special Session to strengthen South Dakota’s draconian abortion trigger law, which upon Roe-overturn will ban all abortions in South Dakota except those performed to save a pregnant woman’s life.

Hansen said something Monday that appears to answer that question: he’ll make abortion homicide under South Dakota law. I waited a couple days for clarification, but receiving none, I read Hansen’s statement and make logical conclusions:

Rep. Jon Hansen and Cory Allen Heidelberger, Twitter conversation, 2022.05.16–17.
Rep. Jon Hansen and Cory Allen Heidelberger, Twitter conversation, 2022.05.16–17.

“Post-Roe, an abortion will be an unlawful killing of a human being under SD law—a homicide,” says Rep. Hansen. This statement is incorrect: the trigger law, SDCL 22-17-5.1, does not mention homicide. The trigger law says abortion, absent the justification of saving the pregnant woman’s life, will be a Class 6 felony. The trigger law does not invoke the language of SDCL 22-16-1, which says homicide is “the killing of one human being, including an unborn child, by another” but which limits homicide to five categories: murder, manslaughter, excusable homicide, justifiable homicide, or vehicular homicide. SDCL 22-16-12 makes murder a Class A or Class B felony. SDCL 22-16-15 makes first-degree manslaughter a Class C felony. SDCL 22-16-20 makes second-degree manslaughter a Class 4 felony. Excusable and justifiable homicide have no penalty. In case it’s not obvious that vehicular homicide is irrelevant to this discussion, SDCL 22-16-41 makes vehicular homicide a Class 3 felony. The Class 6 felony penalty in the trigger law makes clear that in banning abortion, the Legislature is talking about something other than homicide as defined in South Dakota law.

The trigger law does not invoke the language of SDCL 22-16-1.1, South Dakota’s fetal homicide statute. This law says taking action to intentionally cause the death of an unborn child is a Class B felony; however, the 1995 Legislature wrote this law (Session Law Chapter 122/House Bill 1210) to explicitly exclude abortion, whether legal or illegal, from fetal homicide: “This section does not apply to acts which cause the death of an unborn child if those acts were committed during any abortion, lawful or unlawful, to which the pregnant woman consented.”

So again, by no standard available in current South Dakota law or the law as it will stand when the Alito Court makes formal his draft opinion (which itself does not make abortion homicide but only returns the question of whether abortion should be legal to the states) can Hansen say that abortion is homicide.

There are thus two logical explanations to Hansen’s Twitter statement:

  1. Hansen has misread the law and the Alito draft.
  2. Hansen intends Post-Roe to propose legislation to classify abortion as homicide.

#1 is possible. Hansen has gotten the law wrong before.

But under the Mary Haug Rule of Textual Analysis, in which we start with an assumption of authorial intent, #2 is at least as possible. The South Dakota Legislature and other white patriarchal theocrats have long refused to put their money where their mouth is and treat abortion like murder—i.e., charge the doctors and the pregnant women who kill fetuses with Class A felonies and seek life sentences or the death penalty for those murderers. Hansen and the South Dakota Taliban would rather deny women’s intelligence and moral agency than actually throw them in prison. Anti-abortion groups still insist they generally don’t support punishing women who have abortions, but reproductive rights lawyer Kim Mutcherson sees that inclination to insulate women from legal punishment eroding:

So it has very long been a tenet of the anti-choice movement that women should not be punished for having abortions. And part of that is this sort of myth-making that, you know, women only have abortions because the abortion industry is targeting them. Or their husbands or boyfriends are forcing them to have an abortion that they otherwise wouldn’t have. So typically, any kind of abortion ban carve out the person who’s actually pregnant. What I think that we are going to see is a lot of states saying, we don’t need that carve out anymore – right? – because there are going to be so many people who are self-managing their abortions that if you really want to stop abortions happening in your jurisdiction, you’re going to have to go after medication abortions, and you’re most likely going to have to go after the people who are actually having the abortions. But I think that sort of, you know, protective cocoon that has been around women who actually are the people who are terminating their pregnancies – I think that’s going to start to dissipate pretty quickly [Kim Mutcherson, interview with Emily Feng, “Much of the U.S. Could Criminalize Abortion. But How Will Those Laws Be Enforced?” NPR: All Things Considered, 2022.05.18].

Watch out for the final Supreme Court ruling to overturn Roe. Watch out for the bills Representative Jon Hansen will propose in the Special Session Governor Kristi Noem says she’ll call. And watch out in Hansen’s text for the word “homicide”.

17 Comments

  1. larry kurtz 2022-05-19

    6. Republicans preach civil rights for human zygotes but deny the protections of the First, Fourth and Ninth Amendments to people who enjoy cannabis.

    12. The extreme white wing of the Republican Party is using the abolition of women’s rights because they’re wedded to the Replacement Hypothesis.

  2. AmyB 2022-05-19

    I have no doubt that if Roe is overturned that we will have legislators in SD bringing bills (they probably already have them written) to charge women and others who help her go to other states to get an abortion. If Kristi Noem is re-elected I’m sure she has a few of her own that will rival the severity and punishments in other states.

  3. O 2022-05-19

    AmyB, you are certainly correct about how our GOP will throw everything including the kitchen sink at these pregnant woman — and will 100% ignore accountability of the father in the pregnancy.

  4. bearcreekbat 2022-05-19

    Mising from Cory’s analysis is the statute defining murder in the ffirst degree, which may be punished by mandatory life or the death sentence. That statute reads:

    22-16-4. Homicide as murder in the first degree.

    Homicide is murder in the first degree :

    (1) If 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; . . . .

    The SD “trigger” statute appears to remove all “authority of law” to “effect the death of . . . an unborn child,” thus this may be the statutory authority that Hansen relies on for his analysis.

    Since the trigger statute makes abortion a class 6 felony and the murder statute classifications make murder a class A felony, it appears that a woman and her doctor or other health care workers could be charged with both. It is not unusual for two different statutes to make one act a different crime under each statute. And it may be that the trigger statute makes abortion a so-called “lesser included offense” to 1st degree murder so that a defendant acquitted of murder can be convicted under the trigger statute.

    As distasteful as it is, it looks to me like the trigger statute will open the door to more cases of capital punishment in SD.

  5. grudznick 2022-05-19

    Wouldn’t that be ironic, indeed, Mr. H. Mr. Hansen, you know, is becoming insaner each year and will reach his peak in the next when he becomes the primary wielder of the big wooden hammer. It is a pattern that seems sicker than most these past few years, every since Mr. Rausch of the city with big rocks stepped down from the stool behind the platform.

  6. Francis Schaffer 2022-05-19

    Will there be a definition of unborn child? Exactly when is the transition from fetus to child?

  7. DaveFN 2022-05-19

    Hansen is hedging his bets, engaging in wishful thinking, a Pascalian wager his dreams will come true. Let him reveal his motives.

  8. bearcreekbat 2022-05-20

    Francis, SDCL 22-1-2(50A) defines “Unborn child” as:

    . . . an individual organism of the species homo sapiens from fertilization until live birth; . . . .

  9. larry kurtz 2022-05-20

    8. An acorn is not an oak tree so a foetus is no more an unborn child than it is an unborn grandparent.

  10. jerry 2022-05-20

    Taxpayers will have to foot the bill for federal workers, including military, who will have to leave South Dakota for a state that allows abortion. Travel costs and other expenses will be substantial. Federal government should bill NOem for these expenses.

  11. John 2022-05-20

    It appears that we need a law requiring a DNA determination of both contributors to the fetus. Then that law should hold both contributors equally liable for either terminating the fetus, or for child support through age 18, high school, or college graduation if straight through. Sarcasm, folks.

    Here’s where the extremists are taking us. It’s literally like the insiders reported that life was like in the 1930s in Germany. https://www.huffpost.com/entry/far-right-idaho_n_628277e2e4b0c84db7282bd6?utm_source=pocket-newtab (Note the hypocrisy of the candidate’s photo with a gun and the Bible – bet that brown Prince of Peace guy is proud.)

    Democrats and independents need to stop pretending there is a prize for restraint. https://www.latimes.com/opinion/story/2022-05-19/democrats-republicans-january-6-politics

  12. Cory Allen Heidelberger Post author | 2022-05-20

    BCB, I see the logical connection between the language of SDCL 22-16-4 and the trigger law’s criminalization of abortion, But the trigger law specifies Class 6 felony punishment, and SDCL 12-6-12 says murder in the first degree is a Class A felony. The trigger law’s prescription of a different penalty, as well as its failure to refer to “homicide”, tells me that the trigger law does not make abortion homicide. Making abortion homicide will require some rectification of language.

  13. bearcreekbat 2022-05-20

    Cory, the observation that the penalties are different is accurate and common sense implies that only the lesser penalty would apply since it is more specific. But the legislature has the power to impose 2 or even more penalties for a single course of conduct on the theory that each penalty covers a different harm. For example, someone that commiuts murder while robbing a store while robbing a store can be convicted of both murder and robbery.

    Here the the murder statute only requires proof of the fact that the defendant killed someone without legal excuse or authority, the method of killing is not an element of that offense. Under the triggered abortion law, however, the prosecution must prove an additional fact beyond merely killing someone without authority, namely, that the killing was done by an abortion. Thus, it seems clear that the SD legislature has concluded that providing a woman with safe health care when she chooses to terminate a pregnancy, as well as making that choice, is more odious and deserving of an additional punishment than the punishment for an mere unlawful killing. This requirement of proof of the addional fact of using a particular method to kill makes the two crimes different offenses even though they each are based on one course of conduct. The Double Jeopardy clause only protects against multiple punishments for the “same offense.”

    . . . The Court’s formula for determining when two provisions are so similar that they must be presumed to be the “same offence” has come to be known as the Blockburger test: two provisions are presumed to describe and punish the same offense unless each provision requires proof of a fact that the other does not. . . . “

    See page 115 of the linked article:

    https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3497&context=penn_law_review

    Assuming the Court decides there is a different element in the abortion crime, namely the means of killing, then the Court may impose two consecutive or current sentences, life or death plus up to an additional 2 years (plus fine) for the class 6 felony. That sounds absurd, but is the law, at least as I have been led to believe. Perhaps the rationale is that if the murder charge is reversed or set aside or commuted the woman, doctor, nurse, or other defendant would still be faced with his or her 2 year plus fine abortion penalty,

  14. bearcreekbat 2022-05-20

    Additionally, when one offense requires proof of, for example only, 5 facts (elements), but another offense requires proof of the same 5 facts plus an additional fact, the prosecution can choose to charge and prove the offense with fewer elements. This usually happens with greater and lesser included offenses such as murder and manslaughter. Here, ironically the crime with one less element is the more serious crime of murder, as there is no need to prove the additional fact or element of a specific method of killing without authority, only the fact of such killing,

  15. M 2022-05-20

    Watch out, they will consider miscarriages as homicide as well.

    Meanwhile, women and children disappear and get murdered everywhere and nothing is done.

    Rape and incest will no longer be deviant behavior, taboo or illegal because it will be the woman’s fault. The punishment of course will be forced pregnancy.

    Don’t really even see this is less developed nations.

    Yes, snip those balls so they can’t impregnate women, and get rid of the Viagra.

    Funny how the Bible to treats life beginning with breath. Haven’t Christians read their book to know it doesn’t begin at conception but when the baby can breath on it’s own.

  16. Mark Anderson 2022-05-20

    Please folks let the boy do his best. It will make things so much easier nationwide.

  17. bearcreekbat 2022-05-21

    Cory, I am not sure if my above analysis has helped you understand that if the SD trigger law goers into effect a woman terminating her pregnancy and any doctor or other individual that assists her can be charged and convicted of 1st degree murder under existing SD law. There is one other point that ought to be made clear.

    First degree murder is punishable by mandatory life or a death sentence but the death sentence can only be imposed by a jury if the jury finds at least “one aggravating circumstance” listed in SDCL 23A-27A-4.

    . . . If, upon a trial by jury, a person is convicted of a Class A felony, a sentence of death shall not be imposed unless the jury verdict at the presentence hearing includes a finding of at least one aggravating circumstance and a recommendation that such sentence be imposed. If an aggravating circumstance is found and a recommendation of death is made, the court shall sentence the defendant to death. . . . .

    One might conclude that this limiting statute might prevent any jury from imposing the death sentence on a woman or doctor acting in good faith: to help a rape or incest victim, or a woman who’s health, but not life, is seriously threatened; who has been discovered to have a serious fetal anamoly; simply believes that a zygote, blastocyt, embryo, etc is not yet a human life; or who believes every human being, including women, have the right to decide whether and when his or her body parts can be appropriated by the State for the needs of another person, etc. But the reality is that an committed anti-choice jury that believes terminating a pregnancy is, in fact, a horrible murder will have the legal power to force a judge to impose the death sentence on the woman and her medical team because there is, in fact, an undisputable “aggravating circumstance” listed in SDCL 23A-27A-1:

    . . . in all cases for which the death penalty may be authorized, the judge shall consider, or shall include in instructions to the jury for it to consider, any mitigating circumstances and any of the following aggravating circumstances which may be supported by the evidence: . . .

    (6)The offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. Any murder is wantonly vile, horrible, and inhuman if the victim is less than thirteen years of age; . . .

    Obviously, an unlawful abortion by definition has a “victim” less than 13 years old so this particular aggravating circumstance will always apply.

    Cory, do you still think I am mistaken in this statutory analysis?

Leave a Reply

Your email address will not be published.