Scott Roeder was guilty of first degree murder by any legal definition. He decided that Dr. George R. Tiller had to die. He bought a gun and practiced shooting it. He studied his target, learned his habits, knew where he lived and where he went to church. It was inside that church where he finally killed Dr. Tiller after a full year of planning, shooting him in the forehead last May 31. He admitted all of this to the jury, and said he was not sorry. Short of jury nullification, a “not guilty” verdict was impossible, and there was no nullification. Roeder broke the law and was found guilty. He will probably be sentenced to life imprisonment.
I have no objections to this result. Society cannot have citizens performing executions or carrying out their own brand of vigilante justice. Scott Roeder, however, while not denying that he performed an illegal act, maintains that his act was an ethical one.
He has a point.
Dr. Tiller was not just a doctor who performed legal abortions, as too many press accounts unconscionably described him this week. He was one of the very few doctors in the country who performed late-term abortions, or “partial-birth” abortions. In most late-term abortions, the aborted unborn child was viable, meaning that if allowed to be born, it would live. The procedures used in such abortions are horrible to observe or even describe: in the dilation and evacuation procedure, for example, the fetus is pulled to pieces in the womb. 33 states have laws that declare late-term abortions illegal, with certain exceptions; the Supreme Court has ruled that in order to comply with Roe v. Wade, any ban must include a reasonable exception when the life of the mother is in danger. Most doctors won’t do the late-term procedures, some of them because they are difficult, some because they fear legal entanglements, and some because they think late-term abortions are wrong. Dr. Tiller, in contrast, had made such abortions his specialty. He was once tried for straining the limits on the procedure and doing late-term abortions that did not comply with Kansas law. Slate called him “a one-man national referral center for post-viability abortions.”
As that euphemistic phrase suggests, the legal status of late-term abortions is controversial, and should be.
Absolutist pro-abortion groups argue that any ban on late-term abortions should be ruled unconstitutional, but such a position relies on the assertion that even a fully viable fetus is not a human life in the eyes of the law, and deserves no legal protection from the will of the mother. Anti-abortion groups and even some moderate pro-abortion advocates believe that late-term abortion is murder. On a purely logical basis, they have a much stronger argument.
Scott Roeder believed that no matter what the law said, late-term abortions involved killing an innocent life. Laws register and formalize what society decides is lawful and unlawful conduct, but they don’t alter the nature of the conduct. If a state legalized robbery, robbery would still be wrong. Slavery was wrong and unethical while it was legal; it just took a long time for the culture to understand how wrong it was. Laws are in place that allow late-term abortions, but we haven’t agreed that the procedure isn’t an unjust taking of innocent life.
Imagine, hypothetically, that while Scott Roeder is serving his life sentence, American society takes an overwhelming turn to the position that medically terminating a viable fetus is indistinguishable from killing a newborn infant. The laws change accordingly; all such abortions are banned. The previous decades when doctors performed these procedures are now regarded as a period of moral and ethical ignorance, akin to when society permitted child labor, forced sterilizations, or refused to let women vote.
What would happen to Scott Roeder? He might have his sentence commuted, or receive a pardon. Rather than being seen as cold-blooded, fanatic killer, Roeder would be widely hailed as a visionary, one who saw a terrible wrong and sacrificed his own freedom to correct it. People Magazine would do a feature on him, with a large photo showing Roeder surrounded by happy and healthy children, all of whom might have been aborted if the work of Dr.Tiller and others had remained legal. Roeder would be transformed, in the new historical perspective, from a monster to a heroic monster-killer.
Which is exactly how Scott Roeder thinks of himself today.
None of this has happened, and might never happen, but the perception of both killer and victim would be very different if it did. Here is another hypothetical: imagine that a medical researcher discovers that the brains of newborn infants possess a special chemical that can cure most forms of ovarian cancer. The chemical is very powerful: the amount of it obtained from just one child can be converted into a serum that can save the lives of ten women or more. One renegade state, adopting an extreme utilitarian ethic, passes legislation that allows the killing of newborns as long as both parents consent. Even in that state, only the researcher, a medical doctor, is willing perform the necessary procedure. But from all over America, parents seeking the lucrative compensation the state has authorized for the newborns and those hoping to cure another family member enter the state to allow the doctor to perform his deadly, life-saving work. Federal legislation has been proposed to make the procedure illegal nationwide, but it is stalled by lobbyists from the drug industry.
How would you feel about a man who killed the researcher while he was vacationing in a state that regarded the killing of newborns murder? If the prosecutor in that jurisdiction announced that she would not bring charge against the killer, would you be glad, or outraged?
When I learned of the jury’s verdict in Roeder’s trial, I found myself wondering how Clarence Darrow would have defended him, as I am sure our greatest defense lawyer would have loved to do if he hadn’t been dead for over 70 years. Darrow was a progressive and a champion of justice, but he also believed that the law could and should be broken in pursuit of a greater good. He demonstrated this by his admiration of John Brown, the abolitionist zealot who led a blood terrorist raid on Harper’s Ferry to rally opponents of slavery. Darrow delivered a memorial eulogy for Brown that celebrated his use of violence and murder to blaze a path that eventually led to freedom for America’s slaves. At the conclusion, Darrow said,
“John Brown was right; he was an instrument in the hands of a higher power. He acted as that power had given him the grain to see, and the will to do. In answering his inquisitors in Virginia, he said, ‘True, I went against the laws of man, but whether it be right to obey God or man, judge ye.’ Long ago it was said, ‘By their fruits ye shall know them.’ The fruits of John Brown’s life are plain for all to see; while time shall last, men and women, sons and daughters of bondsmen and slaves, will live by the light of freedom, be inspired by the hope of liberty.
“The earth needs and will always need its Browns; these poor, sensitive, prophetic souls, feeling the suffering of the world, and taking its sorrows on their burdened backs. It sorely needs the prophets who look far out into the dark, and through the long and painful vigils of the night, wait for the coming day. They wait and watch, while slow and cold and halting, the morning dawns, the sun rises and waxes to the noon, and wanes to the twilight and another night comes on. The radical of today is the conservative of tomorrow, and other martyrs take up the work through other nights, and the dumb and stupid world plants its weary feet upon the slippery sand, soaked by their blood, and the world moves on.”
Will the same be said of Scott Roeder some day? I disagree with Darrow about John Brown, who killed five men to address a wrong that hardly involved them. I cannot side with Scott Roeder either, though his murderous act has had direct results, inhibiting other doctors from performing late-term abortions and, obviously, stopping Tiller, who was one of the most prolific practitioners of them. I am not even certain where to draw the lines in regulating late-term abortions. If a viable child is a human life, then I believe it may be wrong to abort it even to save the life of the mother. Why is her life more important than her child’s? Yet if we decide that a viable fetus is not a human life with full rights and protections, how is a newborn different? And why should the life of the mother be the only legal justification for a late-term abortion?
Then I watch the films of the procedures, as every pro-late-term abortion advocate must. I think I know what Scott Roeder felt when he watched them.
If society ultimately decides that Roeder’s objective was right, as it ultimately regarding the abolition of slavery, we may come to see him as Darrow saw John Brown, a courageous radical prepared to break laws and suffer for a greater good. Until then, however, what matters most is that Scott Roeder broke the law, and killed a man. Our society believes that there is no such thing as ethical pre-meditated murder, as a sane society must.
Scott Roeder is a justly convicted criminal. Is he also one of Darrow’s prophet-martyrs?
We shall see.