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:
“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:
- Hansen has misread the law and the Alito draft.
- 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”.