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Iowa House bills surface that could protect killers of abortion doctors

Image has not been found. URL: http://images.americanindependent.com/2010/08/MahurinElephant_Thumb.jpgTwo bills sponsored by Iowa House Republicans could have significant public safety consequences, and perhaps the most unnerving of those potential outcomes would be the justifiable use of deadly force against abortion or family planning providers.

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 trail 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 question.

“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.”

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