Murder of Abortion Docs as Justifiable Homicide

Now that the brouhaha over a proposed bill in the South Dakota legislature that would have redefined the murder of abortion providers as “justifiable homicide” is largely over, and the bill has been tabled, let’s consider the origins of the idea.

The justifiable homicide concept burst into national consciousness in 1993. It was contained in two “Defensive Action Statements” which were signed at various times by 33 people. The text of the first as authored by a well-known Gulf Coast antiabortion activist, Paul Hill in 1993 read:

“We, the undersigned, declare the justice of taking all godly action necessary to defend innocent human life including the use of force. We proclaim that whatever force is legitimate to defend the life of a born child is legitimate to defend the life of an unborn child. We assert that if Michael Griffin did in fact kill David Gunn, his use of lethal force was justifiable provided it was carried out for the purpose of defending the lives of unborn children. Therefore, he ought to be acquitted of the charges against him.”

The second, using similar language, was issued on behalf of Paul Hill who had murdered Dr. John Britton and his unarmed escort. Hill had previously also issued a 13 page manifesto about the need for “defensive war” and called for the formation of Christian militias to lead a revolution against the federal government. The Army of God in turn, is populated with people who adhere to similar ideas, many of whom see themselves as engaged in a long-term theocratic revolutionary struggle.

The idea was also introduced via a crude cartoon by far-right Catholic priest, David Trosch. The cartoon depicted a man holding a gun on a doctor performing an abortion and was titled: “justifiable homicide?”

Meanwhile, Operation Rescue activist Michael Hirsch a law student at Pat Robertson’s Regent University Law School, had developed a legal theory of the justifiable homicide of abortion providers which was the core of his 1993 Regent University Law School thesis. It had been prepared for publication in the school’s law review, but all 500 copies of the review were suppressed prior to publication because Paul Hill’s assassination of Dr. Britton suddenly made the article a PR nightmare. Hirsch has argued that the murder of Dr. David Gunn was “consistent with Biblical Truth” and under Florida law, justifiable if one “reasonably believes that such force is necessary to prevent the immediate death or great bodily harm to himself or another.” Hirsch wrote that the “presuppositions” he brings to any discussion “come from the Bible… it is impossible to fully consider the hypothetical defense of Michael Griffin without Scriptural support for the argument.”

Hirsch later sought to test his theory in an appeal of Hill’s murder conviction, but his theory was rejected by the courts, and Hill was executed by the state of Florida for his crimes.

The notion has evolved over time. In the 1980s, attorneys seeking to defend people accused of arson against abortion facilities, unsuccessfully sought to offer the “necessity defense.” In theological circles, the idea of vigilante action on behalf of what was thought to be “God’s laws” was variously called “Defensive action” and “interposition.” Whether approached via the law or via theology, the idea was to justify criminal acts against abortion providers on behalf of the unborn.

But over time the notion of justifiable homicide has stuck, although it has no legal basis whatsoever. The Army of God uses the term to justify the assassination of Dr. George Tiller by Scott Roeder, for example. Roeder, although he had discussed justifiable homicide in 1993 with Army of God leader Michael Bray, sought to use the necessity defense in court, but the judge denied this approach was applicable.

No court in the country to my knowledge has allowed any defense in which the crime is acknowledged but excused via a necessity defense or the argument that murder of an abortion provider constitutes justifiable homicide. That is why it would have been significant if the South Dakota legislators pushing the idea had prevailed in passing the bill. It would probably have been struck down by the courts, but it would have once again raised into national debate about whether the entire notion that the assassination of abortion providers was somehow moral and legal.

In 1993 the idea that even a few people thought that the murder of a doctor was justified was shocking. But as woolly-headed as it may seem to some, the idea lives on.

(For a more detailed discussion of the origins of the theory of the murder of abortion providers as justifiable homicide see my book Eternal Hostility: The Struggle Between Theocracy and Democracy, Common Courage Press, 1997.)