Roe at 37: A Kansas Judge Sets A Dangerous Precedent

This article is being published as part of a series by RH Reality Check and our colleagues in observance of the 37th anniversary of the Supreme Court decision on Roe v. Wade.

been thirty-seven years since the Supreme Court recognized a woman’s
constitutional right to abortion in Roe
v. Wade
, and in that time, without fail, a woman’s ability to obtain an
abortion has been under attack. Between stringent state laws, a lack of
funding, and a severe shortage of abortion providers, abortion is virtually
unattainable for significant numbers of women.

it gets worse. The promise of affordable healthcare
for all is quickly turning for women as federal lawmakers threaten to strip millions
of the abortion coverage that they already have.
And this past week, the judge presiding over the trial of the
man accused in the shooting death of Kansas provider Dr. George Tiller
essentially opened the door to a dangerously forgiving legal defense for those
who commit violent acts—including murder—against
doctors who provide abortion.

expect judges to uphold the rule of law and make sure that its protections apply
equally to everyone. But Judge Warren Wilbert has stepped over that line. Last
week, the judge indicated that he will allow the accused, Scott Roeder, to potentially
avoid conviction on first-degree murder charges on the grounds that he honestly,
albeit unreasonably, believed his actions – shooting Dr. Tiller at point blank
range while he was serving as an usher at his church – were justified to
prevent Dr. Tiller from performing abortions.  After considering this evidence, the jury may have the
option of convicting Roeder of voluntary manslaughter, a considerably less
serious crime which also carries a significantly smaller penalty.

fallout from such a ruling cannot be understated. If anti-choice extremists can
justify murdering or physically harming abortion providers because they
personally believe that abortion is wrong, then they would be, in effect, above
the law. Take it from Reverend Don Spitz of Virginia, a member of the
notoriously anti-choice group Army of God himself. He predicts that the judge’s
decision “may increase the number of people who
may be willing to take
that risk.”  As a result, abortion providers will
fear for their lives even more than they already do because the laws that protect
other citizens from violence do not apply with equal force to them. 

of a straightforward murder trial, Roeder’s case will most certainly turn into
a debate on the legitimacy of violence against abortion providers.  Permitting this to occur in a judicial
forum provides a patina of credibility that the misguided and illegal ideology that
animates anti-abortion violence has not received before.  In U.S. history, no other court has
allowed these perpetrators to avoid a full conviction on the basis that their
acts were necessary or justified.

more alarming then the potential miscarriage of justice that may occur if Dr.
Tiller’s assassin is acquitted of first degree murder while being convicted of only
voluntary manslaughter is the broader signal that this ruling sends to those
who might contemplate violent action against abortion providers – and to
doctors, who now must feel like they have a target painted on their backs.  Just because abortion is a divisive
issue in which people (on both sides) hold deep moral and spiritual beliefs
does not change the fact that violent acts intended to advance any cause are
illegal.  The law must not, and up
to now has not, created special protections for those who commit crimes based
on the sincerity of their beliefs.

our investigative report last summer found, anti-choice forces have targeted
abortion providers for decades – with appalling physical attacks, threats and
intimidation – far too often with impunity. Abortion is the most stigmatized
medical procedure in this country, while remaining legal and a core
constitutional right, as well as a fundamental part of health care for women.

The effect of this deliberate campaign to shut down providers by any means at
the disposal of organized anti-choice groups has been fewer doctors providing
abortion and fewer women across the country who have safe and meaningful access
to abortion services. It is incredibly important that this trial show that the full
force of the law will protect the lives of doctors who perform necessary, legal
services. No matter where you stand on abortion, the murder of doctors who
provide a safe and legal medical service sought by one out of three American
women is intolerable.

Allowing a voluntary manslaughter option negates the
Supreme Court’s constitutional protection of abortion rights and is an
invitation to grotesque and self-serving vigilantism. The promise of Roe is increasingly in jeopardy as the
numbers of abortion providers, under intolerable conditions of threats and
harassment, rapidly decline.
The government must aggressively protect these doctors
who are defending women’s rights, not expose them to further violence by
weakening criminal penalties for pre-meditated murder.

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  • ronavila

    who else could be “justifiably” murdered besides abortion doctors?
    Soldiers whose drone driving results in the death of innocent civilians? Supreme Court justices whose decisions allow abortion? The violently insane? Politicians who support a woman’s right to choose? Rightwing-nuts who may carry out these “justifiable” homicides?
    The death of these individuals will prevent them from committing murder.
    This reasoning is ridiculous.

  • crowepps

    Who else could be "justifiably" murdered?  Golly, it’s hard to know where to stop.  After all, the only thing one would need to prove is that some people who did an action in the past caused a death by it, and so it’s possible that this person MIGHT cause a death in the future.


    It wouldn’t be a stretch to use this argument to justify killing:

    Men who abuse their wives.

    Parents who beat their children.

    Anyone who drives drunk.

  • liberaldem

    Scott Roeder walked into a church and shot Dr. Tiller in cold blood.

    What could possibly justify that act of violence?

    Perhaps I could then walk up to someone marching in the anti-choice rally today in DC and shoot them because I have a justifiable belief that they are going to violate my right to make my own decisions. Would that be legal, moral, or ethical? I think not.

  • carolyn-marie-fugit

    That was NOT Judge Wilbert’s ruling. He said he could not rule on evidence before he heard it nor could he, as a matter of law, rule out the possibility of voluntary manslaughter. He stated several times that Roeder’s defense team would have a very difficult time proving Dr. Tiller was an imminent threat, one of the requirements for the voluntary manslaughter jury instruction. This was the proper ruling before the trial began. He made no ruling, and this was to prevent the possibility of a mistrial. Wilbert quoted a Kansas Supreme Court ruling where the jury was not given the instruction on voluntary manslaughter because the defense did not present the evidence that the victim was an imminent threat to the defendant’s grandson. The Court ruled this was proper. This is what Wilbert is going on, and it is absolutely proper. It’s not his fault the law is in place.


    In court today, one of the defense attorneys multiple times tried to make the trial about abortion, and Judge Wilbert struck this down each time. So many people have been jumping on this long before they should have, long before it could be a possibility. And the reality is, Roeder just cannot prove imminence. And the evidence so far suggests premeditation. 

  • jacqueline-s-homan

    But I would just like to add a little something to your very valid point here. Judge Warren Wilbert used the words "pre-born baby" and "unborn baby" in his addressing Scott Roeder during the peliminaries on the merits of Roeder’s being entitled to use a "necessity defense."


    Also note that Judge Wilbert is obviously not someone who will ever have to make the personal choice of abortion centered on a health and life risk at which it is his body and life 100% at risk. Now, that is not to say that the judge won’t try his best to be fair. But the fact remains that he has never given birth, never been pregnant, and never been slapped with a life or death pregnancy related complication arising in the late term of a pregnancy.


    Second, George Tiller was gunned down in his church. He was unarmed. He was not the first abortion provider to end up dead at the hands of the "American Taliban" — the violence faced by volunteer clinic escorts, women, and clinic staff (which mainstream media has enacted and maintained a large scale media blackout on for over the past decade) has resulted in practically no younger upcoming OB/GYN’s being willing to learn about abortion procedures or perform them.


    The average distance women must travel when trying to get an abortion is more than 50 miles, and that is for an early first trimester abortion. There are only about four or five doctors throughout the entire nation who are willing to perform late term abortions to save the health and/or life of the mother because of the violence of "pro-life" protesters and the stigmatization of abortion.


    That means that if, for example,  a woman who does not find out she is pregnant until she is past 13 weeks along who wants to/needs to terminate that pregnancy must scrape together plane fare to fly halfway across the country, pay for lodging, plus pay for this medical procedure at a provider licensed to perform "late term" abortions. That is the reality of the impact on women in this country.


    Third, despite the judge’s expressed intentions, the fact is that "the abortion issue" cannot be bifurcated from Roeder’s defense. Dr. George Tiller was an abortion provider — not a cosmetic surgeon, or an organ transplant specialist, or a provider of sex reassignment surgery. He was an abortion provider. And that is precisely why he was targeted for assassination.


    If Scott Roeder killed an unarmed doctor who provided any other type of lawful medical procedure and care, would Roeder be allowed a "necessity defense" in the first place? I doubt it. 


    It is also interesting to note that Scott Roeder owes some serious back-due child support for a son he never sees, to the woman who bore him that child, whom he abused. Roeder was also affiliated with white male supremacist "patriot" groups like the anti-government Montana Freemen who love to cry "Communism!" when it comes to taxes, especially taxes for social programs that help poor women and children.


    Yet ironically, many deadbeat dads who weasel out of child support (by fighting/threatening to fight the poor mothers for custody) have NO qualm about their progeny having to be supported on sparse welfare and food stamps from the "Communist" government they despise. 




    "Imposing the non-benign medical condition of childbirth, on unwilling women at peril to their health, wellbeing, lives, and liberty; is the ultimate form of chattel slavery — a human rights violation under Article 7(g) of the Rome Statute."

  • crowepps

    Judge Warren Wilbert used the words "pre-born baby" and "unborn baby"

    There is no such thing as a ‘pre-born baby’, those weasel words are a ProLife coining to attempt to sentimentalize the fetus and ignore the actual risks of pregnancy and birth.  I don’t have any problem with the term ‘unborn baby’ since that’s an accepted phrase in long historical use used after quickening.  It’s possible that the Judge used the terms because they were included in pleadings.  On the other hand, the Judge may have made the savvy calculation that if he placates the fanatics by using their in-group language, it may help him avoid being shot by some psycho when Roeder is convicted.

    That means that if, for example,  a woman who does not find out she is pregnant until she is past 13 weeks along who wants to/needs to terminate that pregnancy must scrape together plane fare to fly halfway across the country, pay for lodging, plus pay for this medical procedure at a provider licensed to perform "late term" abortions. That is the reality of the impact on women in this country.

    A woman who finds out her wanted pregnancy has gone disastrously wrong at or after 20 weeks (halfway through) is in exactly the same situation – she must leave her regular doctor, the support of her family and friends, her home, and fight her way through protesters to end the pregnancy.  The anti’s keep saying this is ‘rare’.  1.4% is almost 20,000 women a year and those are exactly the women for whom Tiller provided help.


    And I still don’t understand how halfway through or less is now assumed to be accurately described as ‘late-term’ – to me ‘late-term’ would be third trimester, 27 weeks or later.  I have seen some sites that call everything after 14 weeks ‘late-term’, which is ridiculous – that’s only the start of the SECOND trimester.

  • carolyn-marie-fugit

    Judge Wilbert was quoting Roeder at the time he said those things. He has also referred to Dr. Tiller as an "abortion provider" and his clinic as a "medical clinic". Many more times, he has talked about "fetuses," not "unborn babies" and "pre-born babies". He has said a fetus’s life is not more important than Dr. Tiller’s. Friday in court, he twice stopped the defense from trying to make the trial about abortion. Judge Wilbert’s lack of ruling on voluntary manslaughter was appropriate before the trial. Having found out more about some of the evidence that will be presented, Roeder will have a difficult time getting down to a voluntary manslaughter jury instruction, let alone to get a jury to decide against premeditation. Kansas juries have had several opportunities to convict Dr. Tiller of something and never have.


    I don’t know if you directed the lecture on Dr. Tiller to me or just stated it in general, but I ask that you not direct it towards me. Since Scott Roeder killed Dr. Tiller a few miles from where I live, I’ve lost reasonable access to abortion. I and all women in the area must now drive three hours to Kansas City twice, and women in western Kansas who already had a difficult time will find it even more difficult with the extra drive. Dr. Tiller provided very few late abortions each year, and while I would never deny the terrible effect his death will have on those women, it is of closer concern to me the effect his death has on my fellow Wichitans and Kansans.


    While you may see this from a national perspective, I’m forced to see it from a local one. I use to drive by Women’s Health Care Services and see KCFL picking up their little white crosses each day at the close of business. I could see the "Truth Truck" and protesters from the window where I had physical therapy. And now, I drive by most every day and am reminded of the loss. I spend time with long time activists who still find it difficult to talk about the death of their friend. I hear activists from around the state suddenly talk about Dr. Tiller as a hero whereas before they barely would support him because late abortions were viewed as the kiss of death yet they were more than willing to accept the candidates and the votes he helped get elected. I worry about the current legislative session knowing the people who helped keep what access we have are gone. I worry about my friends and what this trial is doing to them. And I worry about how this insidious claim is causing unnecessary fear in them.


    And I am also angry how so many people everywhere else seem to think that, of course, a Kansas judge would do this and side with the antis and, of course, a Kansas jury will let him walk in 5. It’s *Kansas*. Well, Kansas also produced Dr. Tiller. We’ve produced a lot of wonderful people. Our politics are not our people.


    Judge Wilbert did not open the door to letting Roeder walk early. He’s trying to close the door on a mistrial. He also showed in trial Friday that the defense cannot open the door on abortion. And any "open season" on abortion providers is not the fault of Judge Wilbert but systemic problems not only in legislation but in law enforcement and society at large.

  • crowepps

    Is there a local paper there accessible through the web whose coverage you would recommend as complete and nonpartisan?


  • janet

    The problem with Judge Wilbert’s ruling is that the distinction you are making has been lost on the general public. As the chilling quote from Mr. Spitz makes clear, the fact that Judge Wilbert did not foreclose the possibility that jurors would hear evidence to support voluntary manslaughter from the outset may in itself influence others who would commit acts of violence against abortion providers.  Although lawyers will disagree on this point, I think Judge Wilbert could have ruled, even before the trial, that evidence related to Roeder’s belief that the murder was justified would not be presented to the jury.  Unlike most murder trials, the essential facts are not dispute:  Scott Roeder has admitted that he shot Dr. Tiller, and there is no doubt about the time, place and manner of that shooting.  Under these circumstances,  Judge Wilbert could have ruled that no facts related to Roeder’s anti-abortion beliefs could support a voluntary manslaughter defense.  We can only hope now that Judge Wilbert ultimately excludes all of this evidence, and that as a result those who advocate for violence against abortion providers understand that their actions will not be justified under the law.