Attorney Jay Davis weighs in on an issue that eager reader and commenter Bearcreekbat has frequently raised in our discussion of South Dakota’s new abortion ban: does South Dakota law now make it possible to charge a woman who aborts her pregnancy in South Dakota with first-degree murder? Davis says inconsistency in South Dakota law now makes such charging possible, but the chances for conviction are thin:
Our fetal homicide statute (SDCL 22-16-1.1) applies when someone caused the death of an unborn child, but specifically excludes abortion, whether legal or illegal. This law would apply to the man who violently beats a pregnant woman, causing her to lose her baby.
Our “trigger law” (SDCL 22-17-5.1) makes it a Class 6 felony to prescribe medication, or to use a surgical instrument, that causes an abortion, unless the abortion is necessary to save the pregnant woman’s life. This law is clearly aimed at the doctor or medical provider, not necessarily the pregnant woman who desires the abortion.
Legally, we could argue that the more specific “trigger law” controls the situation, rather than the more general law, which is the murder statute.
Under South Dakota law (SDCL 22-16-4), the premeditated killing of another human being, including an unborn child, is classed as first-degree murder.
Therefore, a zealous prosecutor could charge the woman who procures an abortion, which is not necessary to save her life, with first-degree murder. Whether the prosecutor could obtain a conviction is another question.
My instinct is that it would be hard to get a conviction [Jay Davis, “A Legal Point Worth Considering: Could a Woman Who Obtains an Abortion Be Charged with First-Degree Murder?” South Dakota Standard, 2022.07.27].
I respect Davis’s instincts about how a murder trial might play out against a woman who aborted her pregnancy, but I’ll continue to lean harder on the argument I offered in May. As Davis notes, the trigger law that banned abortion in South Dakota the day the Alito Court overturned Roe v. Wade, addresses a specific instance, the termination of a pregnancy. Had the 2005 Legislature that crafted the trigger law intended to make abortion first-degree murder, a Class A felony punishable by death, it would not have drafted 2005 House Bill 1249 to write a new section into law deeming abortion a Class 6 felony, the mildest felony classification in South Dakota law. The 2005 Legislature would have left that section out, stuck with the five sections that would repeal legal authorization for abortion, and let abortion, the killing of an unborn child, default to first-degree murder.
2005 House Bill 1249 in its original form did call for punishing abortion as a Class 1 felony. That’s still a step down from the Class A, B, and C felonies that can bring life sentences, but even a 50-year/$50K punishment for abortion struck legislators as too much, and in its first hearing, before House State Affairs, HB 1249 was amended by its sponsor, Rep. Joel Dykstra, to reduce the penalty to Class 6 felony, with a maximum penalty of two years and $4K fine.
If any overzealous prosecutor hauls a woman before a South Dakota judge on a murder charge, her counsel should argue that murder is the wrong charge: the history of the trigger law makes clear the Legislature’s intent not to treat abortion as murder. The Legislature sought to ban abortion but still treat it as a far lesser offense. If any prosecutors to make a murder charge stick against a women who obtains an abortion in South Dakota, they’ll need to lobby Rep. Jon Hansen and other woman-hating legislators to repeal Section 6 of the trigger law, now enacted as SDCL 22-17-5.1, to remove the exception for abortion and treat that consensual medical procedure the same as shooting a pregnant woman in the gut.