'Necessity' defense: Did abortion doctor need to die?

The killing of an abortion doctor in Kansas has set the stage for a closely watched trial that could affect how future abortion-related cases are tried.

Scott Roeder has admitted to gunning down George Tiller in the vestibule of his church in May 2009. Mr. Roeder is charged with first-degree murder, but late last week, his defense lawyers persuaded the judge in the case, Warren Wilbert, to allow them to argue that their client’s actions warrant the lesser charge of voluntary manslaughter.

Voluntary manslaughter is applied in cases when a defendant acts believing that his or her actions are justified. Roeder has insisted his actions were justified because they prevented Dr. Tiller from performing further abortions. Some call this a “necessity defense” argument.

Judge Wilbert will not rule on whether the jury can consider a voluntary manslaughter charge until after the trial begins. Jury selection was supposed to take place in Wichita, Kan., on Monday, but it was postponed until probably Wednesday.

The necessity-defense argument has not been permitted in other high-profile abortion-related trials, including that of Paul Hill, who received the death sentence for killing an abortion doctor in 1994; and James Kopp, who is serving a life sentence for killing an abortion doctor in 1998.

In the Kansas case, it is premature for antiabortion forces to declare a victory, says Tom Brejcha, chief counsel of the Thomas More Society, a public-interest law firm in Chicago that has been involved in right-to-life issues including abortion and euthanasia.

The judge is “just saying he’s approaching it with an open mind,” Mr. Brejcha says. Wilbert is using “ordinary sound judgment before awaiting the presentation of the evidence.”

But others on both sides of the abortion debate have had stronger reactions to the judge’s move.

According to some antiabortion activists, the stronger charges that have been used in similar cases have not permitted their side to explain why violence was the only way to stop what they say is a moral wrong.

“The trial is important to us,” says Donald Spitz, a spokesman for the Army of God, an antiabortion group. “Pro-lifers have been convicted unjustly for years in the court systems because they have not been allowed to state why they took their actions against abortion mills or against baby-killing abortionists.”

Abortion-rights supporters, on the other hand, consider any victories for Roeder’s defense as a possible threat to the legal right of abortion.

“Necessity defense is an argument that certainly should be rejected. We all can have beliefs, but [that doesn’t] give you the right to break the law or commit murder,” says Louise Melling, director of the American Civil Liberties Union’s (ACLU) Reproductive Freedom Project. “You would have a totally lawless society if you said that was warranted.”

While Brejcha has used justifiable-means arguments to defend antiwar protesters who block the public way, the use of it in this case “is a different issue.”

“I don’t think you can rationalize the killing as manslaughter,” he says. “For [the necessity defense], you can only go to his state [of mind] as a killer” and show an unstable mentality. He continues, “That’s a long shot” because of the calculated nature of the killing.

Compared with first-degree murder, which can bring life in prison, voluntary manslaughter allows a lighter sentence of less than five years in prison.

• Material from Reuters was used in this story.

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