The Problem With Scott Roeder’s Defense

In this article from Friday’s NYTimes, Scott Roeder, the man charged with the murder of George R. Tiller, one of the only doctors who performed late-term abortions in this country, took the stand in his own defense:

“I did what I thought was needed to be done to protect the children. I shot him,” he testified, adding at another point, “If I didn’t do it, the babies were going to die the next day.”

In other words, the circumstances justified an otherwise immoral action, because, the logic goes, if Mr. Roeder had not shot Tiller, more people would have died. This is what is called the “necessity defense.” The necessity defense must meet four requirements: First, there must be a threat to a third person. Second, the threat must be imminent. Third, the threat must be the result of an unlawful act. And fourth, the agent must be firm in his beliefs that he was acting out of necessity.

Criticism of the defense focused on whether or not the fetus counted as a third party. Regardless of whether you think that abortion involves taking the life of a human being (and EverydayThomist thinks it does), Mr. Roeder’s defense is unacceptable. He shot Dr. Tiller in front of his church. No pre-born children were in the process of being killed, nor were they going to be killed that day. The threat was not imminent.

Roeder’s move was a preemptive strike, one which assumed that Tiller would go into work the next day and continue conducting late term abortions. But the problem with preemptive strikes is (1) you cannot predict the future and know what Tiller is going to do the next day and (2) they are hardly ever a last resort.

Roeder’s motive to protect innocent lives could have been carried out in a way that did not involve taking the life of another, at least not at that moment. When Roeder acted, he was not defending the pre-born; he was simply shooting a man who had taken the lives of the pre-born in the past. He was shooting a man that he had planned to shoot for weeks.

The “imminent threat” requirement is an important one in cases like this. It rests on the assumption that life is precious, and should only be taken as a last resort, when there is no other possible way to achieve the intended goal of the protection of a third party. In EverydayThomist’s mind, this is why Scott Roeder’s defense fails.

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5 comments so far

  1. nohiddenmagenta on

    Suppose he shot Tiller just as he was getting out of his car to go kill some babies. Or perhaps while he was sanitizing the instruments which would be used to kill said babies. Would this change your argument?

    It seems to me that Tiller would still be acting legally (maybe…it depends if these abortions really were done for medical reasons…many times this requirement is fudged) and thus requirement number three isn’t met. Though I wonder about whether three is a good requirement anyway.

  2. everydaythomist on

    If the threat to life was imminent, which I take to mean that the doctor would have been in the act of performing the abortion, then I think the action would meet the criteria. But anytime before–getting out of his car, sanitizing the instruments, reviewing his notes, the threat is not imminent. Conceivably, Dr. Tiller could change his mind at any point or some other course of events could prevent him from carrying out his task, in which case he would not need to be killed.

    As for #3, I am working on the assumption that an unjust law is not a law. The law allowing Tiller to take life at the third trimester, especially when the life is viable, seems to me unjust.

    However, this blog post is really only on Roeder’s defense. I think his action was reprehensible for a number of reasons: (1) I don’t think society can function and flourish if vigilantes take the law into their own hands, especially when they take the lives of others, even if they have a good reason to; (2) I think that the pro-life cause is ultimately hindered rather than helped by actions like Roeder’s; (3) I think that all life is precious and even people who do very reprehensible things do not deserve to die at the hands of another human being. There is always a hope for reform and rehabilitation in my mind. Tiller’s actions were horrendous, but in EverydayThomist’s minds, so were Roeder’s.

  3. nohiddenmagenta on

    Good stuff. Let me push back though…while first claiming that I think it was wrong to kill George Tiller.

    But do you mean to say the threat is only immanent if they are in the act of doing it? Then it isn’t a ‘threat’ anymore at all, right? It is a reality. If an army is marching on a city I suppose its true that while 100 yards away they could still change their mind, but does that mean I should not fire cannon in its defense?

    1. Do you think there is any good reason to break an unjust law in the interest of justice?

    2. Agreed. But now you sound like a dirty consequentialist rather than a virtue ethicist. 🙂

    3. Presumably one may kill in defense of another without thinking that the killer ‘deserves to die.’ It isn’t punishment…its defense.

  4. everydaythomist on

    I knew you would like (2)! But don’t forget that virtue ethicists look at consequences too, not to figure out how to maximize good consequences, but to determine what was prudent. Scott Roeder imprudently hindered pro-life efforts in this country–he acted in the wrong way at the wrong place and the wrong time. Prudence also dictates when to break an unjust law and when that unjust law must be courageously endured. Take Martin Luther King Jr. marching on Selma. He broke the law but he broke it prudently–the action fit his reality, and it was consistent with virtuous action in other ways in that it was courageous and just.

    As for an imminent threat, I think it has to be one that is actually occurring. Everything else is just a threat that could potentially occur. This is different with individuals than with an army. I just taught my students about Amadou Diallo who was shot 41 times by cops in the South Bronx who saw a suspicious looking man reach into his pocket and pull out . . . they didn’t wait to see. They started shooting, thinking a threat was imminent. But it wasn’t. Diallo was holding his wallet. With human beings, we are notoriously bad at predicting what a human being is about to do and how imminent a threat another human being poses. So I say, you not only wait until you see the gun, you wait to see if the gun is going to get fired at you. And this is why I am not a consequentialist, because had the cops in the Diallo case or any other similar one waited for their suspect to fire on them, they would be putting themselves in more danger. But they would also not have taken an innocent man’s life. An army doesn’t have a “mind” to change so I would say once the order to attack has been given, the threat is now imminent.

    But to all this, I actually diverge from the Thomistic justification of force for self-defense. Due to the sinfulness of our current context, and due to the great propensity of force to be lethal and to take the lives of unintended victims, I think that force out of self-defense is rarely justified. Thomas justifies force in a society where that force would normally come in the form of arm-to-arm conflict or at worst, a dagger or sword, all of which would require direct contact with the aggressor. Such contact allows you to look into the aggressor’s eyes, know his intentions, and understand fully the consequences of one’s actions. With a gun, we are more likely to shoot out of fear and panic (even those trained to do so like cops and soldiers) and thus kill someone we didn’t intend to or kill someone who didn’t really intend to kill us. So whereas Aquinas had to emphasize the justification of force in his society, our society needs to emphasize the importance of non-resistance to an evil-doer. I consider myself a contextual pacifist.

  5. TR Clancy on

    Thom:

    I’m a pro-life Catholic looking for some higher-quality thinking on this dilemma. I’m writing in the wake of the trial court sentencing Scott Roeder to life in prison.

    I’ve read your post and your follow-up, and in my view your entire objection to Roeder’s necessity defense is based on a quite narrow definition of “imminent.” I hope you’d agree that the other three elements of the necessity defense applied: a threat to third persons, an unlawful act, and the agent’s belief that he was acting out of necessity. Tiller’s act, by the way, was unlawful both in violation of Divine law, and the laws of Kansas and the United States, which our weakened judicial system and corrupt politicians proved incapable of enforcing.

    I define the term “imminent” as synonymous with “impending.” If rain is imminent, I don’t have to feel raindrops. If war is imminent, I may have several weeks to move my family out of harm’s way.

    Your use of the term is confined to what is happening, literally, at that very moment. This is too narrow to account for every preventable threat against innocent human life. Was the threat of Hitler against the Jews, or against Europe, imminent in 1938? Or 1939? Was the threat of the 9/11 hijackers imminent on 9/10, or 9/9, or was a defense justified only after hijackers had boarded the planes and were in the air and attacked their first flight crew victims?

    You observe that, whereas Tiller was killed at church, “No pre-born children were in the process of being killed, nor were they going to be killed that day.” It’s unclear to me where it is written that imminence is limited to what is going to take place that day. It was confirmed after Tiller’s death that he had a full schedule of abortions planned for the coming week. Imagine that you are an unborn child, and your mother has Tiller’s first appointment on Monday at 7:00 AM, (or even his last appointment at 8:00 PM), and somehow you are aware of your fate at the moment Tiller is showing up to usher on Sunday morning. Do you consider the threat to your life “imminent?”

    It seems to be that the imminence of the threat has to be determined based on the totality of the circumstances. And the totality of the circumstances, in my view, would have to include an assessment of the bad actor’s motives, and past pattern of activity, and what he can reasonably be expected to do in the near future, including what kinds of influences have been effective against him. I believe that is exactly how Roeder concluded that Tiller was an imminent threat.

    You’ve rejected the kernel of Roeder’s defense, that if he hadn’t shot Tiller, “the babies were going to die the next day.” Is there anything in that statement you can deny? Tiller had a planner full of doomed babies scheduled for dispatch the next morning. You’re setting the bar awfully high if our human inability to predict the future forecloses us from making reasoned assessment of the imminence of future danger. As long as Tiller — certainly one of the most pig-headed and determined butchers to ever shed innocent blood — was hale enough to wield any instrument against an unborn child — even a hammer or a crowbar — he would continue to do so.

    In my opinion, imminence doesn’t mean that he has to have his skull-puncturing scissors in hand. A spy burrowed into an enemy’s government for years may, at a given moment, be formally engaged in some utterly harmless bureaucratic endeavour like listening to his voicemail or emptying his wastebasket, but — if you are a counter-espionage agent charged with protecting against such spies, you consider every moment of the spy’s double life a threat to national security. A soldier asleep in camp is still a military target.

    When you say that “When Roeder acted, he was not defending the pre-born,” I’m pretty sure you’re confusing Roeder’s efficient cause with his final cause, if you get my drift. You are really saying that Roeder’s act did not result in pre-born children being defended. You may as well say that when Allied soldiers invaded German defenses at Normandy on D-Day, “they were not defending America,” just because there were no Americans in the homeland in that moment facing Nazi invasion.

    More directly, we can determine if Roeder was defending the pre-born that Sunday by asking, were any pre-born spared as a direct result of Tiller being in the morgue, unavailable to resume his practice? The clinic had to shut down for at least a week, http://www.huffingtonpost.com/2009/06/02/george-tillers-clinic-to_n_210355.html

    and closed permanently a month later.

    http://www.nytimes.com/2009/06/10/us/10abortion.html

    The pro-life community has known from the beginning that whenever abortions are more difficult to obtain, many mothers who were planning to abort change their minds and go ahead and give birth. Planned Parenthood isn’t going to report on how many abortions were permanently canceled in the wake of Tiller’s death, but I have to believe that at least some babies are alive today because of what Roeder did. If so, then every one of those children owes his or her life to Scott Roeder.

    You have written that Roeder’s “imminent threat” defense fails because that last resort should only be available where “there is no other possible way to achieve the intended goal of the protection of a third party” – strongly suggestive that you know what that other possible way is. But you never tell what it is. The State of Kansas couldn’t stop Tiller, the United States of America couldn’t stop him, being shot in both arms didn’t stop him, and whatever bent form of Christianity he shared with his fellow Lutherans couldn’t stop him. Framed another way, can you really be so sure that, absent the intervention of Scott Roeder in that church that Sunday, Tiller would not have resumed butchering babies the following morning, and thereafter, as his pattern and practice has been for years in the past? And if you cannot say that, then how can you say that threat to those unborn was not imminent?

    This is a moral dilemma, indeed. But I’m certain that at least some of the mothers scheduled to visit Tiller in the weeks after his death, have given birth to babies who are now, I hope, in safer hands. The lives of those children are the direct result of the intervention of Roeder, a fact just as hard as the “hard fifty” that Roeders has just been condemned to. He saved their lives no less so than if firemen them had carried them safely out of a collapsing building. How can you discount that?

    Happy Easter!


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