Deadly Logic
By Dave Leach The Covenant News ~ January 22, 2010
Eighth in a series of news commentary combined with excerpts from the pro se brief which Scott Roeder submitted, and which Judge Wilbert accepted into the record January 8, to answer how the Necessity Defense justifies Scott’s May 31 shooting of Wichita’s late late term abortionist, George Tiller. Judge Wilbert ruled December 22, and again January 8, that Scott must not say a word to the jury about his central defense, the Necessity Defense, although Wilbert is undecided how much to allow evidence for the same defense by another name. Judge Wilbert’s email address is wwilbert@dc18.org. Scott’s trial is scheduled for January 11. Future installments: The Theory that Stopping Kansas Abortions can’t be Justified because Abortion is Legal Originated in a Straw Man argument in 1993 <> Not Even Roe Says Whether Abortion is Genocide is “Irrelevant” <> Imminence and Alternatives.
The reasoning “how can abortion be legally recognized as a harm, when it is Constitutionally Protected?” is based on a “straw man” argument 17 years ago.
The notion that defendant can’t expect the Necessity Defense to justify stopping the most cruel, barbaric genocide, because the most cruel, barbaric genocide is “legal”, originated not in sound legal reasoning, legal necessity, American legal history, the Constitution, our Founding Fathers, or common sense, but from a Straw Man argument in City of Wichita v. Tilson, 855 P.2d 911 (Kan. 1993).
A “straw man”, in logic, is where, instead of addressing your opponent’s position, you address your distorted characterization of your opponent’s position – distorted in a way that makes it easier to refute. That is what the Kansas Supreme Court did to Elizabeth Tilson.
Elizabeth couldn’t have made it more clear that the reason she blocked an abortion door was to prevent human mothers from walking through them to murder their human babies. She even brought expert witnesses into the trial to prove that the lives she saved were human beings. (My grandparents never dreamed anyone would need evidence that the baby of a human is a human!) The District Court Judge, Paul Clark, on appeal, let her.
But the Kansas Supreme Court didn’t address Elizabeth’s actual position. What really motivated Tilson, the Court said, was “to interfere with the rights of others”: “We therefore conclude that defendants did not engage in illegal conduct because they were faced with a choice of evils. Rather, they intentionally trespassed on complainant's property in order to interfere with the rights of others.” After substituting nonsense in place of Elizabeth’s noble goals, the Court could easily rule that her goals were indefensible. “In sum, a claim of necessity cannot be used to justify a crime that simply interferes with another person's right to lawful activity.” State v. Sahr, 470 N.W.2d at 191-192. (Tilson, p. 918)
But what about Elizabeth’s evidence that real human babies were being slain by the millions? Can you just ignore evidence like that?
Well, actually, I wouldn’t have thought so, but the prosecutor didn’t even bother to dispute it! In fact, the prosecutor said apathy about those tiny corpses is required by law! Here’s how the Court explained it: “At trial, over the objections of the City, the defendant was allowed to introduce expert testimony on the question of when life begins. The City did not attempt to controvert such evidence but instead took the position that the evidence was inadmissible because it was irrelevant.”
The problem with a Straw Man argument is that after you “win”, people may notice that you haven’t landed a single punch on your supposed target, but have only managed to shred the effigy you spent so much time fabricating.
I realize that “interfering with the rights of others” is not a “legally protected interest” whose protection “justifies” breaking any law.
But what a difference a few words make! “saving the lives of human beings” has never stopped being a “legally protected interest”. Not even human beings who are First Trimester unborn babies.
True enough, as Tilson says, “Abortion in the first trimester of pregnancy is not a legally recognized harm, and, therefore, prevention of abortion is not a legally recognized interest to promote.” (Page 918) Certainly there is no legal protection of unborn babies the way Roe perceives them: as first trimester unborn babies whose humanity is in doubt, and whose mothers want them dead. Those are the babies sentenced to death by the millions, by Roe v. Wade.
However, Roe legally protects, indeed constitutionally protects, human life, even of first trimester babies. Even Roe “legally recognizes” killing unborn human beings as a harm – serious enough to “collapse” Roe and the legality of abortion rather than knowingly allow such unthinkable harm. Roe even invites evidence from fact finders to establish “when life begins” for the express purpose of “collapsing” Roe, should life turn out to begin at conception, before a single unborn human being can knowingly be slain by unthinkably cruel abortion.
Judge Clark (the lower court judge reversed by Tilson) provided the Tilson court the factual evidence requested by Roe to be applied towards Roe’s “collapse”. But instead of applying this evidence as Roe provided, Tilson violated Roe by regarding this quintessentially relevant evidence as “irrelevant”. And to top it off, as if to fulfill Romans 2:1 which says what we accuse others of is what we do ourselves, Tilson said it was Elizabeth Tilson, not itself, who was erecting a Straw Man to “circumvent the effect of Roe”. Here is how the Court said it:
“Under Roe, an abortion during the first trimester of pregnancy is not a legally recognizable injury, and therefore, defendants’ trespass was not justified by reason of necessity. Defendants attempt to circumvent the effect of Roe and to bolster their defense of necessity by arguing that they reasonably believed that they acted to prevent the destruction of human life. They point to language in Roe in which the court declined to speculate on when human life begins. [Citation omitted.] Defendants argue that life begins at the time of conception, and that they were denied due process of law because the trial court refused to admit evidence which was proffered to support this contention. True, in Roe, the court acknowledged the existence of competing views regarding the point at which life begins. However, the Court declined to adopt the position that life begins at conception, giving recognition instead to the right of a woman to make her own abortion decision during the first trimester. [Citation omitted.] We do not believe that the Court in Roe intended courts to make a case-by-case judicial determination of when life begins. We therefore reject defendants’ argument.”
It is misleading to say “under Roe, an abortion during the first trimester of pregnancy is not a legally recognizable injury”. Roe explicitly laid out the condition under which the “injury” of “abortion during the first trimester” would become “legally recognizable”: evidence beyond reasonable doubt – in Tilson’s case, even uncontested evidence – that the unborn at all stages of development are, as a matter of fact, human beings, and thus have “personhood”, being “persons in the whole sense”. This condition was met by the lower court which Tilson reversed, and is now, since 2007, explicitly set out by Kansas statute in Alexa’s Law, besides being set out in Federal statute in 2004 in Laci and Conner’s Law, a situation that did not exist in 1993 when Tilson was decided.
In the name of ruling “under Roe”, Tilson violated Roe by treating the meeting of Roe’s condition “irrelevant”. And then, to add salt to the wounds it inflicted, the Tilson court said it was not itself, but Elizabeth Tilson who “circumvent[ed] the effect of Roe”! By doing what? By complying with the condition given in Roe which Tilson was determined to keep “irrelevant”!
Indeed, Roe “declined to adopt the position that life begins at conception”, but not as a matter of rejection as a position of law, but as a matter of incapacity to verify that fact, coupled with an invitation to triers of fact to resolve it before human lives are knowingly snuffed out by abortion.
So what does that leave of Tilson’s rationale for saying “abortion...is not a legally recognizable injury”? This: “We do not believe that the Court in Roe intended courts to make a case-by-case judicial determination of when life begins.” In other words, “we can’t let juries determine when life begins.” But wait: it’s worse! Since it was not a jury but a judge which determined “when life begins” in the case reversed by Tilson, Tilson is literally saying “we can’t let anyone determine ‘when life begins’”! No American judge or jury must ever be allowed to even think about “when life begins”! No jury must ever be informed that this question remains, after 37 years, unanswered, or that the defendant is demanding it finally be answered!
Where, in Roe, does this “intent” (that “when life begins” must not be determined case-by-case) appear? Nowhere, of course. Nor would it seem probable that the Roe justices, who treated “when life begins” as a fact issue which the justices had less capacity to resolve than doctors and preachers, and who invited triers of fact to resolve it even if that meant Roe’s “collapse”, could not have anticipated the possibility of resolution through future cases. And surely the Roe justices understood that case law is not established by a single case that then automatically prevails across the nation for all time, but by a series of cases with somewhat competing arguments and rulings. “Precedent” is sort of an average of them. Juries likewise establish facts, and the acceptability of various arguments, only as prosecutors and defense teams study thousands of varying verdicts to estimate what strategies seem to work, and what claims of facts juries will accept.
Tilson’s concern about case-by-case anarchy that will result from answering Roe’s invitation to establish the factual nature of abortion is supported neither by Roe, nor by reason. To give this everyday operation of American law as a reason to fear allowing either a judge or a jury to weigh “when life begins”, as required by Roe, is to fear our entire system of American law!
All this is another Straw Man: an alleged intent in Roe to avoid determining “when life begins” “case by case”, which cannot have existed, as a substitute for the intent Roe explicitly expressed, that the Roe justices did not want to be held responsible for knowingly inflicting cruel, barbaric genocide – a concern about which Tilson orders that no judge or jury should ever be allowed to care. Therefore the very opposite of Tilson’s claim is true. Roe does invite Triers of Fact – juries – to establish the Facts of “when life begins” in the only way possible: case by case.
Human Life, at any stage of development, has never ceased being a “legally protected interest”. Certainly nothing in Roe can support any notion that unborn human life at any stage has lost its legal protection. Roe ruled only that first trimester unborn babies whose humanity is in doubt may lose their legal protection by the choice of their mothers. But the preservation of human life at any stage has never stopped being “legally protected”.
Therefore, even though preserving the lives of unborn babies whose humanity is in doubt and whose mothers want them dead is no longer a “legally protected interest”, saving human lives from being killed by abortionists still is.
The difference? Besides words? Uncertainty about the facts. Roe is in doubt about “when life begins”, or in other words whether abortion is genocide. The Roe justices spoke of this question as a fact question about which doctors and preachers were better informed than Supreme Court Justices. Fact questions are the specialty of juries.
Tilson labels as “irrelevant” this fact question which Roe calls relevant enough to criminalize abortion, and turns it into a “question of law” about which juries have nothing to say, by hiring a Straw Man to turn the Necessity Defense upside down, and ordering us to consider only whether genocide is legal, and not care if it destroys human life. The Necessity Defense, when freed from the Straw Man, as it is understood generally in jurisdictions across America, recognizes that what is most valuable – innocent life itself – is threatened by many things; some of them legal, some of them even “constitutionally protected” – and human decency requires the right to defend it from any and all threats, regardless of the threats’ legal status.