J.J. Goldberg January 24, 2010

It’s been a bad week for old-fashioned notions like the rule of law and respect for the law. Maybe it’s something in the air. This was the week that the Supreme Court ruled that multibillion-dollar corporations are just people and enjoy human rights and liberties just like other people—and deserve the protection of the state that we foolishly thought was supposed to protect us people from the likes of them.

But that’s not all.

A trial opened this week in Kansas in the murder of an abortion provider, and the judge gave the defense permission to argue for a lesser charge on grounds that the defendant was honestly trying to prevent a crime—namely, abortion.

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The defendant, Scott Roeder, is charged with first-degree murder in the killing last May of Dr. George Tiller, one of the few physicians in the country who performed late-term abortions. Roeder has admitted publicly that he killed Tiller in order to save unborn children. In a pre-trial procedure on January 20, he was given permission by Judge Warren Wilbert to try making a case for voluntary manslaughter, which would reduce his minimum sentence from 25 years to four and a half. Under Kansas law, this means proving that he was motivated by an “unreasonable but honest belief that circumstances existed that justified deadly force.” In other words, the judge has formally sanctioned the possibility that murdering Tiller could be shown in court to be a life-saving act.

Newsweek argues that the judge’s decision won’t have much of an impact, because Roeder won’t be able to make his case. He would need to prove that a third person was threatened by an unlawful act, when abortion is legal, and that the threat was “imminent,” when Tiller was killed in church on Sunday morning. That is indeed a tall order.

But that misses the real impact of the decision. What the judge has done is to make the welfare of the fetus a legitimate question in the case. If this decision is allowed to stand, it becomes an open invitation to future attacks, more closely tailored to the technicalities of the voluntary manslaughter statutes. Whether or not Roeder can prove the elements of voluntary manslaughter in his own case, the fetus has now been granted standing in this and any future cases. We might even see fetuses called as character witnesses. Or, perhaps, permitted to make campaign donations.

No less damaging, Judge Wilbert has sanctioned the notion that in the case of an ideologically motivated murder—in plain language, an act of terrorism—the motives or goals behind the act can be considered mitigating circumstances. That’s some precedent.

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