37 Years After Roe, Abortion Access Attacked in Kansas Courtroom

January 22, 2010
Guest Post

By Janet Crepps, Deputy Director of the U.S. Legal Program at the Center for Reproductive Rights and a former criminal defense attorney

It's 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.

And 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.

We expect judges to uphold the rule of law and make sure that its protections apply equally to everyone. But Judge Warren Wilbert (left) 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.

The 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.

Instead 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.

Even 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.

As 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 lives of doctors who perform necessary, legal services will be protected by the full force of the law. 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.