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Nebraska Bill Could Legalize Killing Abortion Doctors

Following in the footsteps of an abandoned South Dakota effort, Nebraska legislators seem poised to consider a bill that would expand the concept of justifiable homicide in wildly unacceptable directions:

The legislation, LB 232, was introduced by state Sen. Mark Christensen, a devout Christian and die-hard abortion foe who is opposed to the prodedure even in the case of rape. Unlike its South Dakota counterpart, which would have allowed only a pregnant woman, her husband, her parents, or her children to commit “justifiable homicide” in defense of her fetus, the Nebraska bill would apply to any third party.

“In short, this bill authorizes and protects vigilantes, and that’s something that’s unprecedented in our society,” Melissa Grant of Planned Parenthood of the Heartland told the Nebraska legislature’s judiciary committee on Wednesday. Specifically, she warned, it could be used to target Planned Parenthood’s patients and personnel. Also testifying in oppostion to the bill was David Baker, the deputy chief executive officer of the Omaha police department, who said, “We share the same fears…that this could be used to incite violence against abortion providers.”

Baker’s concern is well-grounded: Abortion providers are frequent targets of violent attacks. Eight doctors have been murdered by anti-abortion extremists since 1993, and another 17 have been victims of murder attempts. Some of the perpetrators of those crimes, including Scott Roeder, the murderer of Wichita, Kansas, abortion provider Dr. George Tiller, have attempted to use the justifiable homicide defense at their trials. Several of the witnesses at Wednesday’s hearing cited Tiller’s murder as a case where a law like the one Christensen introduced could have come into play.

For his part, Christensen insisted that his measure is not intended to target abortion providers. Like Jensen, Christensen claimed that his bill is merely meant to allow pregnant women to defend their unborn children without fear of prosecution. “LB 232,” he said, “is really nothing more than an attempt to make sure a pregnant woman is not unnecessarily charged with a crime for using force to protect her unborn child from someone who means to bring harm to her unborn children.”

Is Christensen telling the truth? Well here’s what the relevant part of the bill (PDF) says:

Subject to the provisions of this section and of section 28-1414, the use of force upon or toward the person of another is justifiable to protect a third person when:

(a) The actor would be justified under section 28-1409 in using such force to protect himself or herself against the injury he or she believes to be threatened to the person whom he or she seeks  to protect;

(b) Under the circumstances as the actor believes them to be, the person whom he or she seeks to protect would be justified in using such protective force; and

(c) The actor believes that his or her intervention is necessary for the protection of such other person.

Section 28-1414 deals with the reckless or negligent use of force in the protection of oneself or another and, theoretically at least, could apply to a situation where someone murders an abortion doctor as part of a conscious plot. However, Christensen is wrong when he says that his bill only applies to pregnant mothers protecting their unborn children. There is no such limitation in the law and, even if it isn’t his intent, it seems clear that the law could, as Deputy Chief Baker states, incite violence against abortion providers.

This is just one example of the somewhat surprising number of abortion related bills that newly elected Republican state legislators have introduced this year. It may play well with their base, but I can’t see how it helps the party politically in the long run.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. michael reynolds says:

    Again: nothing at all surprising about this. Bills like this make perfect sense given the anti-abortion position and rhetoric. In fact they are inevitable.

    The problem here is that as always conservatives lack imagination. So they are incapable of extrapolating from their ideology to the inevitable consequences.

    If abortion is murder then what’s the problem with this bill?

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  2. Litlebritdifrnt says:

    Unless there is some recent medical breakthough of which I am unaware only women can get pregnant, therefore what is the reason for the “he or she” language in the law if it is not to permit a male to prevent harm to a fetus?

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  3. EddieInCA says:

    Another day.
    Another wacky GOP bill.

    Tomorrow the sun will rise in the East.
    Tomorrow the sun will set in the West.
    Tomorrow someone in the GOP will propose another wacky bill.

    Nothing to see here.
    Move along.

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  4. wr says:

    I can’t wait for the Teabagger lecture on how the right to murder anyone you don’t like is the cornerstone of the constitution.

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  5. Dodd says:

    I wondered why there was no mention of “abortion” in the “relevant portion” of the bill. It’s because the relevant portion is this:

    (3) For purposes of this section:
    (a) Third person or person to be protected includes an unborn child; and
    (b) Unborn child means an individual member of the species Homo sapiens at any stage of development in utero.

    The portion you quoted, Doug, is a fairly common amongst the states (my state has more or less the same use of force to protect third persons, but even broader rules are pretty widespread). And it is unchanged (except for the minor revision noted below).

    All this bill actually does is remove any doubt that unborn children are included in the class of persons for whom one has an affirmative defense if one uses force to protect them. But as you well know, Doug, statutes must be construed in harmony with other statutes. This bill doesn’t change Nebraska’s murder statutes. And providing abortion services is legal in the state. It therefore strains the language beyond the breaking point to say that it means that people who set out to kill abortion doctor will have access to the defense also. Ergo, this law cannot be construed in the manner suggested; saying otherwise is just another round of hyperbolic excess intended to smear pro lifers.

    BTW, all the ‘he or she’s’ are because the original statute appears to be written with the neutral ‘he’ and this bill updates the entire thing to gender inclusive language be consistent with the new section.

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  6. Herb says:

    “Eight doctors have been murdered by anti-abortion extremists since 1993, and another 17 have been victims of murder attempts.”

    And how many pregnant women have been prosecuted for killing someone trying to harm their baby? Lemme guess…..Zero.

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  7. Herb says:

    “Ergo, this law cannot be construed in the manner suggested; saying otherwise is just another round of hyperbolic excess intended to smear pro lifers.”

    HA! This defies credibility. What’s more likely?

    A) This is an attempt to give pregnant women a new defense if they kill someone.

    or

    B) This is an attempt to give the unborn legal protections, introducing a precedent which will slowly chip at the legality of abortion-on-demand.

    Do you really expect me to believe A?

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  8. Doddi says:

    Do you really expect me to believe A?

    I am not concerned with what you believe. I am concerned with the law.

    And the canons of statutory construction are very clearly on implicit repeal of one statute by another: It cannot be done if another, reasonable interpretation of the statute can be found. Since the only interpretation that leads to the result proposed is the most extreme one, and the patently obvious one offered by its progenitor is reasonable, the statute cannot be read in the suggested fashion. QED

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  9. Herb says:

    “I am not concerned with what you believe. I am concerned with the law.”

    If so, then perhaps you might want to look into Nebraska’s existing self defense laws and ask, “Are pregnant women already covered by them?” If so, stick that QED up your nose.

    Perhaps you forgot Scott Roeder used this very defense (unsuccessfully, of course) in his murder trial. Yet, it’s a smear to pro-lifers to say that other would-be doctor killers would use it if it were codified into law?

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  10. Dodd says:

    “Are pregnant women already covered by them?” If so, stick that QED up your nose. Perhaps you forgot Scott Roeder used this very defense (unsuccessfully, of course)

    Well, as I’ve already said, “unsuccessfully, of course” pretty much sums it up. Also as already stated, “All this bill actually does is remove any doubt that unborn children are included in the class of persons for whom one has an affirmative defense if one uses force to protect them.”

    The absence of this provision hasn’t stopped people violating other laws to attempt to foist such a defense (obviously since, as you note, it’s already been tried). But it cannot be read to assist them in doing so. That’s really not hard to understand, even for a non-lawyer.

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  11. anjin-san says:

    > I can’t wait for the Teabagger lecture on how the right to murder anyone you don’t like is the cornerstone of the constitution.

    wr, why do you hate America?

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  12. Matt B says:

    Dodd

    And the canons of statutory construction are very clearly on implicit repeal of one statute by another: It cannot be done if another, reasonable interpretation of the statute can be found. Since the only interpretation that leads to the result proposed is the most extreme one, and the patently obvious one offered by its progenitor is reasonable, the statute cannot be read in the suggested fashion. QED

    I appreciate your point, but it’s also one that assumes the law function within a vacuum, and laws are only used as “laws.” There have been enough writings by anti-abortion thinkers that a critical first step towards a legal challenge to Roe v. Wade is legally establishing, as you put it, “that unborn children are included in the class of persons for whom one has an affirmative defense if one uses force to protect them.”

    This is as much a political\social issue as a legal one. The establishment of the fetus as a legal class of person then becomes a rallying point – something that can be interpreted as giving force to an argument (see the relationship of Tea Partiers and the Commerce Clause).

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  13. Herb says:

    That’s really not hard to understand, even for a non-lawyer.

    Do you have to close your eyes to get that blind spot or what?

    I feel bad for the dummy who thinks he’s got a license to kill, then finds out in court that he doesn’t. But I’d rather these dummies not be given the impression they have a license to kill in the first place.

    (And yes, I’m assuming doctor-killers are of below-average intelligence and do not grasp the finer points of the law, like how abortion is legal and killing abortion doctors, even with this law on the books, is not.)

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  14. Dodd says:

    The establishment of the fetus as a legal class of person then becomes a rallying point – something that can be interpreted as giving force to an argument (see the relationship of Tea Partiers and the Commerce Clause).

    Your parenthetical is entirely opaque to me. But the rest isn’t anything new. Already the law treats an unborn child as protected in most circumstances other than if the mother wants to abort it. If you kill a pregnant woman in many jurisdictions, you’re already likely to get indicted in two charges, not one. That’s just a commonplace example of laws being interpreted harmoniously, as will inevitably be the case here.

    I feel bad for the dummy who thinks he’s got a license to kill, then finds out in court that he doesn’t. But I’d rather these dummies not be given the impression they have a license to kill in the first place.

    (And yes, I’m assuming doctor-killers are of below-average intelligence and do not grasp the finer points of the law, like how abortion is legal and killing abortion doctors, even with this law on the books, is not.)

    You’ve already established yourself that said “dummies” already think they’re absolved of any crime. And, no, I don’t feel bad for anyone who decides that killing a doctor is okay, whether this law is passed or not. A tiny handful of such people are no reason not to affirm the right women to defend themselves and their unborn children. The blind spot, if there’s any here, is hiding that, not lunatics. It’s created by an unreasonable, absolutist position on abortion that can abide nothing, however small or tangential to the topic, that can be viewed in any way at all as an encroachment. Even where, as here, one has to assume that all logic and centuries of settled jurisprudential practice will be tossed aside to get there.

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