[eDebate] If you need a test case for PP v. Casey....

scottelliott at grandecom.net scottelliott
Tue Jul 25 12:57:51 CDT 2006

I tend to be pro-life, but even I think this is a little extreme (not to mention

[HB1215 plus new statutes could equal murder charges for doctors
By Kevin Woster, Journal Staff Writer
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.

In his memo, Gerdes said there's a question about whether HB1215 - which bans
almost all abortions - would ever have effect in law. Although the bill was
approved by the state Legislature and signed by Gov. Mike Rounds, it has been
referred to a public vote in November. And even if it survives that vote, the
law will likely be challenged in court on constitutional grounds, a process
that could take years to conclude.

"As a practical matter, in due course a federal court will likely restrain the
effect of 1215 until its constitutionality is litigated," Gerdes wrote. "But a
period of doubt may exist."

And if HB1215 eventually does take effect, its potential penalties could be
magnified by changes in homicide statutes that were passed by the South Dakota
Legislature in 2005 and took effect July 1, he wrote.

Lawyers disagree on the combined effects of the homicide law (South Dakota
codified law 22-16-4) and HB1215, Gerdes wrote. But because the issue hasn't
been clarified in court, the possibility exists that a doctor could be tried
for first-degree murder for performing an illegal abortion, he wrote.

First-degree murder is a Class A felony with a maximum penalty of death. Hunt
said that's not something that a state's attorney would casually bring against
a doctor.

"State's attorneys have a job to be responsible when they're indicting people,"
he said. "I think the idea of taking any responsible individual in the
community and charging them with something that will result in execution,
that's not taken lightly."

The fact that it's being discussed at all has Dr. Marvin Buehner, a specialist
on obstetrics and gynecology in Rapid City, ready to move his practice to
another state.

"If this law doesn't get repealed in November, I'll be looking for another place
to work," Buehner said. "It would be hard to stay in this kind of environment."

Laws approved during the past two legislative sessions created the legal basis
for the discussion. In 2005, the state Legislature approved a revision of the
state criminal code, with the changes that took effect this month. One of the
changes modified the definition of homicide constituting first-degree murder so
that it included the premeditated, unlawful killing of "any unborn child."

The "unborn child" provision doesn't apply legally to the approximately 800
abortions performed each year at the Planned Parenthood clinic in Sioux Falls -
the only medical facility in the state known to perform abortions - because
current state statutes deem them legal. But HB1215 would change the legal
status of all but a few of those abortions, because it bans the procedure in
South Dakota except when needed to save the pregnant woman's life.

The provisions of HB1215 would make violating the law a Class 5 felony,
punishable by a maximum of five years in prison. But Gerdes said the inclusion
of "any unborn child" in the state homicide law raises "a legal uncertainty"
about the potential for more serious charges and punishment.

Hunt said the report by Gerdes was "kind of a biased, incomplete view of the
subject" aimed at examining the worst-case scenario for doctors.

"Mr. Gerdes is doing what he is paid to do as paid lobbyist and general counsel
for the South Dakota Medical Association," Hunt said.

Hunt argues that the modification of homicide definitions in state law by the
2005 Legislature does not have as profound legal effect as Gerdes claims. The
state Legislature had already created a fetal homicide charge in 1995, which
refers to taking the life of an unborn child "without lawful jurisdiction,"
Hunt said.

Fetal homicide is a Class B felony, with a maximum penalty of life in prison,
Hunt said.

When asked about HB1215 and the first-degree-murder issue earlier this week,
Gov. Mike Rounds said that right now, the problem involves distant
possibilities. If the bill survives the November vote, it would be tied up for
years in court challenges, he said.

Rounds said his office hadn't considered the possibility that the changes in
homicide law could elevate the potential charge for violating HB1215 to murder.
But if that appeared to be true, lawmakers could address that issue in future
legislative sessions before the law takes effect, he said.

"Even if one Legislature did not, you would have perhaps two or three that could
review it," Rounds said.

That isn't good enough for Buehner, who worked as a leader in the South Dakota
Campaign for Healthy Families organization to refer the HB1215 to a public

"You can't pass legislation of this magnitude and expect to fix it later," he
said. "I don't feel confident that this particular Legislature could do
anything competent regarding abortion."

Hunt said Gerdes had presented "in essence a potential problem." But Hunt also
said taking a human life, even before it's born, is a serious matter that could
merit a serious charge and penalty. And state prosecutors would handle that
responsibility, he said.

"What I'm saying is that if a doctor were to cause an abortion under 1215, the
first thing any state's attorney is going to do is look at 1215 and see we're
looking at a five-year maximum," Hunt said. "And, yes, it's possible, that a
state's attorney can charge anything. They can charge all the way up to
treason. But you've got to have the evidence to support it."]

(the irony? people who are "pro-life" wanting to impose the death penalty.)

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