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Judge Allows Abortion Foes to Use 'Greater Evil' Defense

September 28, 1989|CAROL WATSON | Times Staff Writer

A female prisoner argued that she should not be punished for engineering a jailbreak to prevent the greater evil of an imminent lesbian rape.

Cancer patients claimed that they should not be prosecuted for smoking marijuana to prevent the greater harm inflicted by chemotherapy treatments.

Amy Carter, Abbie Hoffman and 13 others contended that they were innocent of alleged infractions in a campus protest because they were trying to stop the greater evil posed by local CIA activities.

And three anti-abortionists said this week that they should not be convicted for blockading a Ventura abortion clinic to stop the greater evil performed inside.

The prisoner and the patients and the campus protesters successfully used the "defense of necessity."

The three abortion protesters were found guilty.

Nonetheless, their case was noteworthy, apparently marking the first time the necessity defense has been allowed in an abortion-protest trial in a California municipal court, according to attorneys familiar with such cases.

The necessity defense says that laws can be broken to prevent greater harm or "significant evil."

Judges have routinely barred the necessity defense in abortion cases because abortion, which must be shown to cause a greater harm to make the defense work, is legal.

But Ventura County Municipal Judge Steven Hintz's highly unusual decision to allow the necessity defense could help establish case law.

The three defendants are appealing the guilty verdict that was returned Friday.

Their appeals do not focus on the necessity defense, but the state appellate court may take the opportunity to comment on the use of the defense, according to attorneys on both sides of the case.

National anti-abortion groups, which have been repeatedly thwarted in their attempts to use the necessity defense, proclaimed the Ventura case a step forward.

Judie Brown, president of the 179,000-member American Life League, said she was surprised and encouraged by a California judge allowing the necessity defense.

The Stafford, Va.-based group seek a constitutional amendment that would recognize the "personhood" of the unborn.

"The necessity defense is the key to all of the efforts with the pro-life movement to save children," Brown said. "Protesters are taking action to protect the innocent children who live in the wombs of the mothers' bodies." Some legal experts said they doubted whether other judges would follow Hintz's lead.

To use the defense, Roe vs. Wade, the landmark U.S. Supreme Court decision that legalized abortion, must be ignored, said Carol Sobel, an attorney for the American Civil Liberties Union in Los Angeles.

California law now states that women have a right to an abortion during the first 24 weeks of pregnancy.

In fact, use of the necessity defense is a red herring, Sobel said.

She said it focuses attention on the question of whose rights are more legitimate--those of the fetus or of the clinic--but ignores the constitutional rights of women seeking abortions.

"The women who are targets of this outrageous behavior are lost in the necessity argument," Sobel said. "It was as if those fetuses got to the clinic by themselves."

Whatever its ramifications may be, the case reflects the county's heated-up battle over abortion.

The National Organization for Women is preparing for what it hopes will be the biggest pro-abortion event ever in the countyCin Ventura on Oct. 7.

Meanwhile, anti-abortion groups have united into the Alliance for the Protection of Children.

And daily demonstrations outside county abortion clinics continue. Last Saturday, more than 300 protesters from both sides confronted each other at the Ventura clinic. No arrests were made.

The Ventura demonstration that eventually went to court arose on July 6, when 50 protesters grouped around the entrance of the Family Planning Medical Associates clinic for five hours, blocking access to women who wanted abortions and other services. Of the 17 protesters arrested, 14 pleaded no contest and were convicted of obstructing a public passage and refusing to disperse. Three stood trial.

Hintz, who was unavailable for comment, told the jury that they could render a not-guilty verdict if they found that the protesters believed the blockade was the only way to prevent a significant evil.

He allowed the defense to introduce literature about abortion and to argue about when life begins. However, he blocked introduction of two videotapes that depict actual abortions.

Deputy Dist. Atty. Patrice E. Koenig argued that the issue was not at what stage life begins but whether the protesters had indeed blocked the building.

The jury subsequently found Loren Broyles, 27, Catherine Garziano, 27, and Raymundo Rodriguez, 29, guilty.

The judge sentenced Rodriguez and Garziano to one year summary probation, during which they cannot come within 100 feet of the clinic. They also must pay a $275 restitution fee and spend 10 days in a work-release program.

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