HB1215 plus new statutes could equal murder charges for doctors

By Kevin Woster, Journal Staff Writer | Friday, July 21, 2006

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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 vote.

"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."

Contact Kevin Woster at 394-8413 or kevin.woster@rapidcityjournal.com