Judge Rules Against Main Defense Claim of Anti-Abortionists

In a setback for anti-abortion activists, a Municipal Court judge ruled Tuesday that Operation Rescue leaders cannot attempt to justify their March 25 blockade of a women’s clinic by claiming that they were preventing “murder.”

“There is no way it can be shown that abortions were stopped that day,” Judge Richard A. Paez told Operation Rescue founder Randall Terry and four co-defendants, all of whom face trial on misdemeanor counts of trespass and conspiracy.

Blocks Use of Defense

Paez’s ruling blocked use of the so-called “defense of necessity,” which holds that laws can be broken in the interest of preventing greater harm, and cleared the way for the trial to begin. Jury selection started Tuesday afternoon.

Terry and the four others are the first of 539 anti-abortionists who face trial. The charges stem from a sit-in staged at Family Planning Associates on Westmoreland Avenue last March in which hundreds of Operation Rescue supporters blocked entrances at the clinic in an effort to disrupt services. The demonstration, part of a “Holy Week” crusade against abortion, resulted in the arrest of about 780 people.

Even if abortions had been prevented that day, Paez said, the law then and now is clear: women in California have a right to an abortion during the first 24 weeks of pregnancy.

Rules Out Some Witnesses

“This is a case of trespass, of conspiracy to trespass, of obstruction of a lawful business,” Paez said. He said he would not permit the defense to call as witnesses “experts” on whether life starts with conception, nor to display photos of fetuses on the counsel table.

Terry reacted angrily to the judge’s ruling. Claiming that his defense had been “gutted” even before it began, he accused the judiciary of becoming the “lap dog of the death industry.”

“Can pro-lifers get a fair trial anywhere in this country?” he asked a crowd of reporters outside the courtroom.

Tuesday’s proceedings were without the placard-waving anti-abortion demonstrators who prayed and sang at the Los Angeles County Courthouse on Monday. Only a handful of supporters joined Terry on Tuesday.

Prosecutors from the city attorney’s office had asked for Paez’s ruling as a way to prevent the trial from being turned into an arena of debate over abortion. They conceded, however, that the abortion issue will continue to play a part in the proceedings.

Paez said he will allow the defendants to explain why they staged the demonstration at the clinic, and the defense attorneys said they will capitalize on that opening to present their views on abortion.

“We’ll put on a defense of why they were there,” said Cyrus Zal, one of the defense attorneys. “They’ll know what the issue is.”

With the necessity-defense issue aside, prosecutors turned to other matters. Deputy City Atty. Lara Bloomquist asked the judge to prohibit Zal from praying at “strategic moments” in the trial, such as when the prosecution makes its arguments, and from prominently displaying a Bible.

Zal objected: “The Bible is my first book of reference, for law and for my personal life.”

Paez said that while he would not order Zal to put away the Bible, the defense attorney will have to refrain from “flashing” it to the jurors.

Facing trial with Terry are Jeff White, 31, of Santa Cruz, Andrew Eppink, 41, of Palmdale, Donald Bennette, 36, of Mission Viejo and Michael McMonagle, 36, of Philadelphia. Terry, 30, of Binghamton, N.Y., is representing himself, as are White and McMonagle.

The defendants, who earlier pleaded not guilty, are charged with trespassing, resisting arrest, blocking a sidewalk, failure to disperse, violating court orders and criminal conspiracy. The maximum penalty is $10,000 and one year in jail.

In an effort to strengthen their hand, defense attorneys had argued that the Family Planning Associates clinic was engaged in unlawful activity, claiming that it performs abortions after the 20-week period, in violation of a ban set forth in the 1967 California Therapeutic Abortion Act. That law, however, was rendered moot by the landmark U.S. Supreme Court decision on Roe vs. Wade that grants a woman’s right to an abortion.

The defense then sought to argue that the court’s July 7 decision on Webster vs. Missouri should be used to revive the California Therapeutic Abortion Act because it allows states to ban late-trimester abortions based on the possible “viability” of the fetus.

But Paez was not swayed. The Webster ruling has had no impact on California, he said, and it would be up to the state Legislature, not the courts, to introduce viability as a criterion for abortions. Furthermore, the Operation Rescue demonstrations occurred long before the Webster decision was handed down.

The court drama is being played out against the backdrop of what anti-abortion activists claim is a resurgence of their crusade. Operation Rescue has announced a weeklong series of activities for Los Angeles and Southern California, culminating in another demonstration planned for an undisclosed clinic on Saturday.

Several dozen anti-abortion protesters on Tuesday gathered at a “funeral” in the Odd Fellows Cemetery on Whittier Boulevard. Placed in a child’s casket and buried in a grave was what spokesmen identified as a 16-week-old aborted fetus.

Operation Rescue also denounced what it described as vandalism at a Long Beach church where members have held meetings. Clothes hangers and pro-choice slogans had been painted in red on the church’s walls. No one has been arrested in connection with the vandalism.