Can Scott Roeder Really Use The "Necessity Defense?"

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:

In probably all previous cases, the dog-and-pony show proceeded, the prosecutor bringing in his witnesses to prove what nobody seriously contests. That way there is an appearance of a right to trial by jury. The jury gets to weigh the facts, which the defendant does not contest. But I have proposed to Scott that he stipulate to the alleged facts, making the dog-and-pony show irrelevant to any additional information the jury needs to make its determination, and dramatically isolating the necessity defense as the sole contested issue of the case.

He adds,

Legally protecting a harm does not render it harmless. The necessity defense requires reasonable people to judge whether a harm is in fact harmless, regardless of how courts or lawmakers feel about it.

Leach thinks a jury will acquit Roeder, which is almost certainly false. His trial may spark abortion debate, but probably not in the way he wants. Yesterday a group of abortion foes, many of them jailed for crimes against abortion providers, signed a letter arguing that Tiller's murder was justified. Kathy Spillar of the Feminist Majority Foundation responds,

This clearly shows [Roeder's] connection to the most extremist branch of the anti-abortion movement, which has long advocated this defense, that somehow the murder of doctors is justifiable. It's a defense that should not be allowed, but it shows his deep connections. We can only hope that law enforcement is looking into those connections and any possible involvement in the murder of Dr. Tiller.

The more people in the anti-abortion movement stand up to excuse the killing of abortion doctors, the less Roeder looks like a lone gunman. And if, indeed, many in the anti-choice camp condone murder, their claims of compassion and moral uprightness lose credibility. Roeder's defense strategy may well attract attention to the anti-abortion cause — but that attention may be negative.

Murder Suspect Confesses To Killing Abortion Provider [LA Times]
Suspect Admits To Tiller Murder, Will Attempt Necessity Defense [Iowa Independent]
Des Moines Man Hopes To Free Alleged Tiller Assassin With ‘Necessity Defense' [Iowa Independent]
Suspect In George Tiller Murder Confesses; Experts Doubt Defense [Wichita Eagle]
Suspect Confesses To Killing Wichita Abortion Doctor George Tiller [American Chronicle]

Related: The Quiet Fall Of An American Terrorist [Salon]

Send an email to Anna North, the author of this post, at annanorth@jezebel.com.