Judge Allows Abortion Foes to Use ‘Greater Evil’ Defense

A female prisoner argued that she should not be punished for engineering a jailbreak to prevent the greater evil of an imminent lesbian rape.

Cancer patients claimed that they should not be prosecuted for smoking marijuana to prevent the greater harm inflicted by chemotherapy treatments.

Amy Carter, Abbie Hoffman and 13 others contended that they were innocent of alleged infractions in a campus protest because they were trying to stop the greater evil posed by local CIA activities.

And three anti-abortionists said this week that they should not be convicted for blockading a Ventura abortion clinic to stop the greater evil performed inside.

The prisoner and the patients and the campus protesters successfully used the “defense of necessity.”

The three abortion protesters were found guilty.

Nonetheless, their case was noteworthy, apparently marking the first time the necessity defense has been allowed in an abortion-protest trial in a California municipal court, according to attorneys familiar with such cases.

The necessity defense says that laws can be broken to prevent greater harm or “significant evil.”

Judges have routinely barred the necessity defense in abortion cases because abortion, which must be shown to cause a greater harm to make the defense work, is legal.

But Ventura County Municipal Judge Steven Hintz’s highly unusual decision to allow the necessity defense could help establish case law.

The three defendants are appealing the guilty verdict that was returned Friday.

Their appeals do not focus on the necessity defense, but the state appellate court may take the opportunity to comment on the use of the defense, according to attorneys on both sides of the case.

National anti-abortion groups, which have been repeatedly thwarted in their attempts to use the necessity defense, proclaimed the Ventura case a step forward.

Judie Brown, president of the 179,000-member American Life League, said she was surprised and encouraged by a California judge allowing the necessity defense.

The Stafford, Va.-based group seek a constitutional amendment that would recognize the “personhood” of the unborn.

“The necessity defense is the key to all of the efforts with the pro-life movement to save children,” Brown said. “Protesters are taking action to protect the innocent children who live in the wombs of the mothers’ bodies.” Some legal experts said they doubted whether other judges would follow Hintz’s lead.

To use the defense, Roe vs. Wade, the landmark U.S. Supreme Court decision that legalized abortion, must be ignored, said Carol Sobel, an attorney for the American Civil Liberties Union in Los Angeles.

California law now states that women have a right to an abortion during the first 24 weeks of pregnancy.

In fact, use of the necessity defense is a red herring, Sobel said.

She said it focuses attention on the question of whose rights are more legitimate--those of the fetus or of the clinic--but ignores the constitutional rights of women seeking abortions.

“The women who are targets of this outrageous behavior are lost in the necessity argument,” Sobel said. “It was as if those fetuses got to the clinic by themselves.”

Whatever its ramifications may be, the case reflects the county’s heated-up battle over abortion.

The National Organization for Women is preparing for what it hopes will be the biggest pro-abortion event ever in the countyCin Ventura on Oct. 7.

Meanwhile, anti-abortion groups have united into the Alliance for the Protection of Children.

And daily demonstrations outside county abortion clinics continue. Last Saturday, more than 300 protesters from both sides confronted each other at the Ventura clinic. No arrests were made.

The Ventura demonstration that eventually went to court arose on July 6, when 50 protesters grouped around the entrance of the Family Planning Medical Associates clinic for five hours, blocking access to women who wanted abortions and other services. Of the 17 protesters arrested, 14 pleaded no contest and were convicted of obstructing a public passage and refusing to disperse. Three stood trial.

Hintz, who was unavailable for comment, told the jury that they could render a not-guilty verdict if they found that the protesters believed the blockade was the only way to prevent a significant evil.

He allowed the defense to introduce literature about abortion and to argue about when life begins. However, he blocked introduction of two videotapes that depict actual abortions.

Deputy Dist. Atty. Patrice E. Koenig argued that the issue was not at what stage life begins but whether the protesters had indeed blocked the building.

The jury subsequently found Loren Broyles, 27, Catherine Garziano, 27, and Raymundo Rodriguez, 29, guilty.

The judge sentenced Rodriguez and Garziano to one year summary probation, during which they cannot come within 100 feet of the clinic. They also must pay a $275 restitution fee and spend 10 days in a work-release program.

Broyles, who said he could not promise to stay away from the clinic, refused those terms. He was sentenced to 10 days in jail and 10 days in the work-release program. He also was ordered to pay the restitution fee and a $500 fine.

Defense attorney Robert D. Silver said he will appeal on grounds that the judge should have allowed admission of the abortion videotapes as evidence. He also will argue that parts of the prosecution’s rebuttal were inappropriate.

However, Silver said the trial was noteworthy because it proved that abortion could be debated rationally without the players falling prey to emotion.

“The really tremendous thing of this case is that the district attorney’s office said if the necessity defense was allowed, there would be so much prejudicial emotion, people couldn’t have a fair trial,” Silver said. “Our jury decision proves they’re rational, even on real hot issues.”

Koenig maintains that use of the necessity defense could allow people to break the law in any number of ways provided they believed they were preventing evil.

“It’s a dangerous concept: ‘I believe this is a significant evil; therefore, I can break the law,’ ” Koenig said. “It’s opening the door for lunatics of all varieties.”

Still, some nearby courts have approved its use. In Santa Barbara last year, Municipal Judge Frank J. Ochoa Jr. allowed it in the trial of 35 University of California, Santa Barbara students charged with trespassing in the chancellor’s office.

The students were protesting the university’s hiring of a CIA agent to teach a political science course.

The states of New York, Illinois and Texas recognize the defense by statute, said George P. Fletcher, a professor at the Columbia University School of Law.

Fletcher sees both positive and negative in the tactic. “The promise of the necessity defense is that it opens criminal trials to the political factors that motivate individual acts of conscience,” he wrote in a commentary for the Los Angeles Times. “The peril is that governments and their agents will seek to justify illegal uses of power as acts necessitated by the public good.”

The necessity defense seldom works, said Peter Arenella, a professor of criminal law at UCLA.

Documented cases using the defense go back to the 1800s. Perhaps the most famous case occurred in 1884, when three sailors and a cabin boy were shipwrecked.

The sailors killed the cabin boy and fed off his remains until they were rescued. Charged with murder, the sailors argued that they killed one person to prevent the greater harm of all four starving to death.

The necessity defense was rejected when it was ruled that the cabin boy’s life was worth no less than the lives of the sailors and that they should have drawn lots to determine who would be eaten.

Frequently, defendants who are motivated by political or moral causes use the necessity defense in hopes of swaying the jury with their beliefs, Arenella said.

He cited groups trying to argue that they blocked nuclear power plants in order to avoid the greater harm of a nuclear war.

However, the defense rarely results in acquittal when used in political cases, Arenella said.

John Erlichman and others involved in Watergate argued that burglary wasnecessary to serve the greater good of the United States. The courts rejected their argument.