Abortion Doctor Killer Allowed to Use 'Necessity Defense'

Jan. 13, 2010— -- Scott Roeder, the killer of Kansas abortion provider Dr. George Tiller, may tell jurors that he believed the killing was justified to save the lives of the unborn, but whether the jury whose selection begins today will be allowed to consider that argument is still up in the air, a judge ruled Tuesday.

At a hearing in Wichita, Judge Warren Wilbert declined to side with prosecutors and block defense lawyers from even mentioning Roeder's anti-abortion motives for the killings.

If Roeder, 51, can persuade jurors that he had an "unreasonable but honest belief" that killing Tiller was necessary to save lives, Kansas law allows them to convict him of voluntary manslaughter rather than the more serious crime of murder.

But the judge ruled that he would wait to hear the evidence before deciding whether to give jurors the voluntary manslaughter option.

"We don't fast forward," Wilbert said. "We don't jump to conclusions, and we don't arrive at the end of the process without a full and complete -- and hopefully impartial -- hearing."

The judge's ultimate ruling is sure to stir the controversy that has long surrounded abortion in this country.

Abortion opponents took Tuesday's decision as a victory, but it would be a major triumph if the judge were to allow the jury to consider voluntary manslaughter, because he would be implying that fetuses are human beings whose lives can be saved, according to legal experts.

Kansas courts have ruled that viable fetuses are not human beings.

"If the judge allows this, he would be allowing the jury to consider whether a fetus is a person," University of Kansas law school professor Suzanne Valdez said.

Abortion-rights advocates also say giving juries the option of applying a lesser charge to the killers of abortion providers would encourage more violence against the providers.

Roeder, of Kansas City, Mo., is accused of murdering Tiller on May 31 by shooting the doctor through the head as he served as an usher at his church. Tiller was one of four doctors in the nation who performed late-term abortions.