Scott Roeder has confessed to the murder of abortion provider Dr. George Tiller, but plans to use a "necessity defense" in his trial, claiming his crime was necessary to prevent abortions. Could he succeed?
This version of the necessity defense sounds like something out of Law & Order, but it has been tried before. Paul Jennings Hill, who murdered an abortion doctor and his bodyguard, attempted to use the defense, but was barred from doing so. He was later executed. Clayton Waagner, a domestic terrorist who sent hundreds of envelopes containing fake anthrax to abortion clinics, also tried to advance a necessity defense in his 2003 trial. He too was barred from doing so by a judge, and was convicted of threatening to use weapons of mass destruction. In 1993 and 2007, courts ruled that the necessity defense cannot be used in crimes against abortion providers — and for good reason. The Free Dictionary identifies three main elements of the defense:
(1) the defendant acted to avoid a significant risk of harm; (2) no adequate lawful means could have been used to escape the harm; and (3) the harm avoided was greater than that caused by breaking the law
In the 1993 case, the Kansas Supreme Court ruled that the "harm avoided" cannot be a legal activity like abortion. Law professor Margaret Raymond says Roeder's case is unlikely to overturn this decision. She explains,
Typically, you don't get to use that defense in murder cases. The problem with a necessity defense in this case is that it is hard to say that something that the law permits is an act that must be prohibited at the cost of death.
Though the defense is unlikely to get him acquitted, or even to be allowed by a judge, Roeder is receiving some support. His public defender seems flummoxed by his choice — he says, "I'm not sure if we've had a parting of our thoughts here or what. We'll have to talk with Scott and see what's going on in his head, I guess" — but Roeder has met with Georgia lawyer Michael Hirsh, an expert in similar defenses. Hirsh hasn't commented on Roeder's case, but he did say in a previous interview,
The fact is that there is a mountain of scientific evidence that shows the humanity of an unborn child. And Dr. Tiller was notorious, by his own designs, for specializing in late-term abortions. So there's no denying by rational people the humanity of an unborn child, and the only difference in the unborn child and you and me is size, age and location.
Roeder's goal may be less to get an acquittal and more to turn his trial into a referendum on abortion. That was Waagner's aim back in 2003. Of that trial, Salon's Frederick Clarkson wrote,
Originally, Waagner wanted to use his trial as an international media stage to put abortion on trial. [...] He was bitterly disappointed that he was not allowed to use the necessity defense, and made a point of getting the judge to reassure him that he could appeal partly on the court's denial. Acting as his own attorney, Waagner tried to raise his issues at every turn.
Dave Leach, who helped organize the short-lived eBay auction to pay Roeder's legal fees, also wants "to put abortion on trial." He says that by admitting to the murder, Roeder has shifted the focus to whether his crime was justified: