When the two pieces of legislation are combined they create a situation where a fertilized egg would be considered a person, and allow for the public execution of those who would threaten such a person.
If passed into law, the two bills — House File 7 and House File 153 — would offer an unprecedented defense opportunity to individuals who stand accused of killing such providers, according to a former prosecutor and law professor at the University of Kansas, and are something that might have very well led to a different outcome in the Kansas trial of the man who shot Dr. George Tiller in a church foyer.
Melanie D. Wilson, associate professor of law at the University of Kansas, closely followed the trial of Scott Roeder, the man convicted of murdering Tiller. Roeder, at the urging of Iowa anti-abortion activist and former GOP legislative candidate Dave Leach, attempted to use the necessity defense, which says it is permissible to commit a crime if it stops a greater harm. The judge in the case refused to allow Roeder to use that defense.
“When [Roeder] presented the necessity defense, he failed because the legislature had basically already decided the abortion issue,” Wilson said. “So, as long as Tiller was performing legal abortion, [Roeder], as a defendant, didn’t get to re-decide the case [of abortion's legal status]. Just as a matter of law, the judge wouldn’t allow that argument.”
Currently, abortion is also settled law in Iowa. But House File 153, sponsored by 28 Republicans, challenges it. Under that bill, the state would be mandated to recognize and protect “life” from the moment of conception until “natural death” with the full force of the law and state and federal constitutions. Essentially, the bill declares that from the moment a male sperm and a female ovum join to create a fertilized egg that a person exists.
House File 7, which has been sponsored by 29 GOP House members, seeks to expand state law regarding use of reasonable force, including deadly force. Current state laws provide that citizens are not required to retreat from their dwelling or place of business if they or a third party are threatened. The proposal would significantly expand this to state that citizens are not required to retreat from “any place at which the person has a right to be present,” and that in such instances, the citizen has the right to use reasonable force, including deadly force, to protect himself or a third party from serious injury or death or to prevent the commission of a forcible felony.
Also included in the proposal is a new section to the Iowa Code that would provide automatic criminal and civil immunity to a person who uses deadly force, unless a police investigation proves that the person was not acting “reasonably.” Also key to the immunity clause is the fact that law enforcement would likely be barred from arresting a person at the scene of an incident “unless the law enforcement agency determines there is probable cause that the force was unlawful under this chapter.” If law enforcement does make an arrest, and if that person is later found to have used reasonable force by a court of law, taxpayers could be on the hook for the reimbursement of the person’s attorney fees, court costs, compensation from loss of income and other expenses.
“This is a much stronger argument for a defendant,” Wilson said. “The hurdle that would need to be overcome is the standard of ‘reasonableness,’ but the larger question is who gets to decide that. Is that question that comes before a jury or does a fact-finder get to decide it? In the necessity defense with Roeder, he didn’t get to argue in front of a jury. As a matter of law, he failed. But if this is a jury, and there is a law that says a fetus is a person, then a jury could decide that a reasonable person in like circumstances could be justified in defending that fetus.”
Another aspect of the Roeder case had to do with “imminent threat,” and that is something not addressed in the bill before the Iowa legislature.
“Does this provide someone who is a person with an anti-abortion stance at least an opportunity that is more likely to get to a jury? I think the answer is yes,” Wilson said. “What we are looking at in Iowa is quite different [than the situation in Kansas], because there doesn’t appear to be an imminent requirement, which means that it will all turn on reasonableness. The legislature hasn’t dealt with how lawful abortions fit into this.”
Todd Miler, a criminal defense attorney in Des Moines, agrees that these two bills, when combined, create a situation that could lead to
someone claiming the killing of an abortion provider or a family planning worker was reasonable use of deadly force.
“My first thought when I looked at House File 153 was that it was a first step — something that had been put out there as a first step toward a larger political goal. But, when you place it next to House File 7 the potential ramifications are startling,” Miler said.
“[House File 7] explicitly provides that people have a right to defend themselves or others at any place they are legally allowed to be. That would definitely include sidewalks or streets outside of clinics. They could attempt to kill a physician or a clinic worker, and if they did so while believing they were protecting another person, which would be defined under House File 153 as a fetus, then, under this law, they would have the right to do that.”
House Majority Whip Erik Helland (R-Grimes) is one of 19 Republicans and two members of leadership who has sponsored both pieces of legislation. When asked by The Iowa Independent if he was aware of or considered the practical ramifications of both bills, Helland avoided
“The reality is I support both,” Helland said. “If we get a chance to pass both out of the House, I will vote for both.
“The reason I want both out of the House is because HF 153 will never get a vote in the Senate. There will be no vote to hold them on record. We can get the House D’s and R’s on record with 153, but HF 5 is the only one that might get a vote in the Senate, and if we have an
opportunity to take a step forward and protect more life then we have to do it.”
When asked to clarify if his stated position meant that he understood the practical ramifications of the bills and that he supported such an outcome, Helland offered no further response.
Other Iowa House members who have signed on as sponsors to both bills are Dwayne Alons, Mark Brandenburg, Royd Chambers, Betty De Boef, Cecil Dolecheck, Jack Drake, Joel Fry, Chris Hagenow, Bob Hager, Daniel Huseman, Jared Klein, Dan Rasmussen, Walt Rogers, Jason Schultz, Chuck Soderberg, Annette Sweeney, Ralph Watts and Assistant Majority Leader Matt Windschitl. The Iowa Independent also reached out to Windschitl as a member of the leadership team for comment. None was provided.
Taken at face value, the bills provide Iowans an opportunity to protect themselves from harm or death at any time and at basically any place — unless the Iowan is woman facing a pregnancy that could endanger or health or life. That aspect, according to former U.S. Rep. Dave Nagle, who practices law in Waterloo, shows the hypocrisy of those who have signed on as sponsors of both bills.
“It also shows that when you try to take the law where the legislature is taking it, you can really get into what I call a bog of inconsistencies,” Nagle said. “On one hand, you are allowed to shoot someone if you feel threatened, but, on the other hand, if you are going to die from a medical condition — pregnancy — you aren’t allowed to defend yourself against that eventuality.
“It really feeds into that old adage that Republicans value children from the moment of conception until birth.”
When laws like this are passed, he said, what happened in “Kansas will become the norm.”
Nebraska Resurrects "Justifiable Homicide" Abortion Bill
Just when abortion rights supporters thought they had beaten a controversial bill they believe would legalize the killing of abortion providers, it has cropped up again—this time in a more expansive form that has drawn the concern of law enforcement officials.
Last week, South Dakota's legislature shelved a bill, introduced by Republican state Rep. Phil Jensen, which would have allowed the use of the "justifiable homicide" defense for killings intended to prevent harm to a fetus. Now a nearly identical bill is being considered in neighboring Nebraska, where on Wednesday the state legislature held a hearing on the measure.
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."
But, as other lawmakers pointed out during the hearing, Christensen's bill, as currently written, would not only apply to pregnant women but to anyone who attempted to prevent harm to a fetus. "I think it opens the door to something unintended," said state Sen. Steve Lathrop. "I don't think you came in here intending to make those who provide abortions a target of the use of force," he told Christensen, "but I think it may unintentionally do that or at least provide somebody with an argument that they were justified in that."
Not everyone is sure that the law's potential use in a case of abortion-related murder was unintentional. "If they wanted it narrow, they
should have drafted it that way, and they did not," Alan Peterson, a lobbyist with the ACLU of Nebraska who testified at the hearing, told Mother Jones. "So I have reasonable suspicion that the intent was at least to create a possible broad defense for attacks on abortion providers."
"I don't know how anyone knows my intent," Christensen fired back in an interview with Mother Jones.
Christensen and proponents of his bill, including the anti-abortion groups Americans United for Life and Family First, argue that concerns that the measure would legalize violence against abortion providers are overblown. They say that since abortions are legal in Nebraska, the killing of an abortion doctor would not be permissible under Christensen's law. (Proponents of South Dakota's bill made a similar case.) But Peterson disputed this interpretation. He said the existing self-defense statute that Christensen's bill would amend is "not limited to situations where something is going on that's unlawful. It says the person who claims the defense believes that there's something unlawful. That's a subjective standard." A standard, he added, that might allow the killer of an abortion provider to use Christensen's law, if
passed, to get away with murder.
Christensen, who was first elected to the state legislature in 2006, has a history of advancing eyebrow-raising legislation. "Controversial bills don't bother me at all," he once said. Recently, he has pushed a measure that would allow teachers and other school officials to carry concealed weapons on school grounds. And in January, he introduced a birther-style bill that would require presidential and vice presidential candidates to provide a "certified copy" of their "original long-form" birth certificates in order to be listed on the ballot in Nebraska. He's also floated a bill, similar to one introduced by Jensen in South Dakota, which would prohibit Nebraska's courts from basing their rulings on foreign law—a measure that's part of a quixotic nationwide right-wing campaign to ban Sharia law.
Christensen said that he was unaware that a justifiable homicide bill similar to his had been introduced in South Dakota, though it recently caused a national outcry after the possible implications of the legislation were reported by Mother Jones. Following Wednesday's hearing, where lawmakers and others highlighted the potential dangers of his bill, Christensen said that he's prepared to revise the legislation and "narrow it down to just protecting mother and unborn child." Then "it'll be noncontroversial and we'll be ready to go."
He added, "I do not believe in killing people for undue reason."