Scott Roeder, who has confessed to the fatal shooting of a Kansas abortion provider, is fighting prosecutors’ attempts to ban the so-called necessity defense at his trial.
Roeders’ attorney filed a motion stating that Roeder should be allowed to argue that the killing was necessary to prevent Tiller from performing abortions, The Associated Press reported this week. The move was a surprise, because lead defense attorney Steve Osburn had said earlier this month that the necessity defense was not a viable option. At the time, Osburn was responding to Roeder’s statement to The Associated Press that he’d killed George Tiller and that he intended to use the necessity defense at his trial, scheduled for Jan.11. Osburn has not explained his apparent reversal.
The necessity defense is highly unlikely to succeed in Roeder’s case, according to two law professors who spoke to Hatewatch. “He may think this is his opportunity to explain why abortion is murder, but that’s not relevant,” said Michael Kaye, a professor of law at Washburn University School of Law in Topeka, Kansas. Also known as the “choice of evils” defense, the necessity defense is on the books in many jurisdictions and allows defendants to argue that they needed to take action to prevent greater harm. “Kansas has never to my knowledge recognized the necessity defense in its statutes, but sometimes defendants do raise it,” said Melanie Wilson, a law professor at the University of Kansas School of Law. In those cases, the court has declined to decide whether Kansas should recognize it, saying it’s a moot point because the defendant can’t meet the criteria for the defense. “It’s a legitimate defense,” Wilson said. “It’s one that’s difficult to prove because there are many prongs to it.”
For instance, the action that the defendant tried to prevent must be illegal — not simply perceived as immoral. If a woman has the right to an abortion under certain circumstances — and if the abortions that Tiller performed were lawful — then Roeder could not successfully argue that he was justified in killing Tiller to stop him from carrying out abortions, Wilson said. In addition, the harm created through the defendant’s actions must be less than the harm that was avoided, which would be difficult to show in Roeder’s case.
Kansas courts have previously rejected necessity defenses by abortion protestors who were charged with trespassing at clinics. In 2007, for instance, the Kansas Court of Appeals ruled that the Rev. Mark Holick, pastor of the Spirit One Christian Center in Wichita, could not use the defense. And in 1993, the Kansas Supreme Court decided that the necessity defense did not apply to the case of Elizabeth Tilson, who blocked the door to an abortion clinic in Wichita. The court said that allowing the defense would “not only lead to chaos, but would be tantamount to sanctioning anarchy.”