Anti-Abortion Murder or Not

Tibor R. Machan

In Wichita a trial is under way in which Scott Roeder is charged with the murder of Dr. George R. Tiller. No disputing the charege that he did the killing and the only issue up for debate is wether the killing was murder or justifiable homicide.

The main line of argument in defense of Mr. Roeder is that Dr. Tiller murdered children--60,000 of them as reported in The New York Times--and his killing was the only way to prevent further such murders. As The Times reports, “'George Tiller shed the blood of 60,000 innocent children,' Randall Terry, the founder of Operation Rescue, told reporters. Mr. Terry ... said that he was neither condoning nor condemning Mr. Roeder’s actions, but that people should remember the children."

So, then, the defense relies on the view that if there is injustice in a country, if the laws permit unjust acts to be committed, then citizens who want to remedy this may take the remedy they believe in into their own hands. I, for example, believe that taxation in official extortion by the government and all those who facilitate this extortion are engage in unjust acts. By the reasoning of the Roeder defense team, I would be legally justified in taking into my own hands the effort to remedy the injustice being committed by those complicit in taxation. If I felt the way to stop them all would be to blow up their office buildings or inflict serious injuries on tax collectors, I would have the legal authority to do this, according to the argument in support of Mr. Roeder.

Never mind for now that the belief that abortion amounts to homicide, let alone to murder, is if not out and out false then at least highly debatable. A human being is supposed to be rational animal and prior to a certain point of the development of the fetus only a potential human being exists since no cerebral cortex is present to make rationality possible. (The case becomes different with so called partial birth abortions--some of these may be homicide and even murder, some of them self-defense. The matter is not amenable to a simple discussion but even her taking the law into one's hands is impermissible.) The notion of an unborn child is a virtual oxymoron when most abortions occur--no child exists then.

But one need not enter the abortion controversy fully to consider Mr. Roeder a murderer. This is because in a civilized society even someone who has murdered another may only be punished by following due process--by being arrested, brought to trial, convicted, and then sentenced to a particular punishment. Citizens only very rarely may avoid this process and take the law into their own hands and even then they need to follow some due process measures, such as making a citizen's arrest and bringing the alleged culprit to the legal system for prosecution. This is the crucial issue for even those who do agree that Dr. Tiller was guilty of injustices and needed to be brought to justice.

If you add to this the difficulties widely recognized about construing ordinary abortions as homicide, let alone murder, then what Mr. Roeder did cannot be legally excused. No one has assigned him the job of administering justice in the state of Kansas. As I noted already, someone who considers taxation outright extortion, as I do, still must proceed by following due process in the effort to stop the policy. There are circumstances, of course, when the government's failure to administer justice can serve as a justification for "taking the law into one's own hands," but these circumstances must come very close to those of totalitarian tyrannies where other methods of making changes in the legal system are completely unavailable. And when the matter is so thoroughly fraught with disputable allegations on all sides as is abortion, then going slow on how to make the needed changes, assuming they are needed, is especially necessary.

The reason there are courts of law and trials in a civilized country is that great care must be taken when someone is charged with an legally codified injustice and may be convicted by taking his or her liberty and even life. A carefully laid out system, honed by years and years of legal precedence, serves the purpose of not turning the process into back alley jurisprudence. So even if the defense offered up by Mr. Roeder is plausible, it is unreasonable even if one grants that abortion is itself something highly debatable. Its debatability is due in part to the fact that the determination of the exact beginning of a human being--which is what the issue is in abortion, not whether human life is involved, which is very ambiguous--is a serious problem. This is no geometry, after all, but biology and ethics. One must not demand the same precision here as one can in that other, more formal, discipline, something against which Aristotle had warned some 2500 years ago.