Revised South Dakota Homicide Law Could Allow Abortion Providers To Be Charged With First-Degree Murder If They Violate Ban On Procedure

Dave Gerdes, an attorney for the South Dakota State Medical Association, in a recent legal memo said that, under a revised state homicide law, physicians who violate a state law (HB 1215) that bans abortion except to save the life of the pregnant woman could be charged with first-degree murder, the AP/Aberdeen American News reports. The state Legislature last year approved an amended version of the state criminal code that changed the definition of first-degree murder to include the premeditated killing of "any unborn child," the AP/News reports. "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, adding, "As a practical matter, in due course a federal court will likely restrain the effect of [the ban] until its constitutionality is litigated. But a period of doubt may exist." The ban, which has not yet taken effect, will be on the statewide ballot in November. If approved, the law would take effect and then likely would be challenged in court. State Rep. Roger Hunt (R), the ban's sponsor, said physicians who break the law would be faced with a Class 5 felony, which carries a maximum penalty of five years in prison. However, Gerdes said that the inclusion of the "any unborn child" phrase under the revised homicide law raises a "legal uncertainty" about the potential for elevated penalties. Hunt, who also is a lawyer, said the report by Gerdes was "kind of a biased, incomplete view of the subject," but he did not rule out the chance that a physician could be charged with murder in some circumstances. "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. He also said first-degree murder is an offense that a state's attorney would "not tak[e] lightly." Gov. Mike Rounds (R) said his office did not consider the likelihood that the new homicide law could increase the seriousness of charges against physicians if they violate the ban. He added that state lawmakers could address the situation in future legislative sessions if the law takes effect. "Even if one Legislature did not, you would have perhaps two or three that could review it," Rounds said (AP/Aberdeen American News, 7/22).

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