CAN THE KILLING OF ABORTIONISTS BE JUSTIFIED?
by Charles E. Rice
In the moral sense, every abortionist, as the deliberate killer of an
innocent human being, is a murderer. Why, then, can a defender of his
intended victims not blow away that murderer-for-hire as he walks from his
car to the entrance of the abortuary, or as he leaves his house to drive
to "work," or as he looks over the racks in the video store for a movie to
watch at night?
If you were walking down the street and saw, through a living room window,
a man strangling a child, you would have a legal right to break down his
door to intervene to save that child. You would have the right to inflict
injury and perhaps even death on the perpetrator if necessary. This
necessity or justification defense is generally recognized in state and
federal courts, but not in abortion cases. No appellate court has upheld
the necessity defense, or the privilege to defend others, in an abortion
rescue case. The unborn child is the only human being excluded from
entitlement to rescue efforts to prevent him from being killed.
In any civilized society, all human beings have a natural right to be
treated as persons entitled to the right to live. <Roe v. Wade> has
corrupted the law by defining the innocent unborn child as a nonperson who
therefore has no constitutional rights and who may be executed at the
discretion of his mother. The necessity defense, however, is not limited
to the protection of legally recognized persons; it authorizes the use of
necessary and reasonable force for the protection of all human beings as
well as animals and other property. The Supreme Court could not change the
reality that the unborn child, whom it defined as a nonperson, is a human
being. The result is a conflict of entitlements: the mother is entitled,
by court decree, to kill her child; other persons are entitled to protect
a human being in danger, which the unborn child is.
If American law regarded the unborn child as a person, as it should, that
law, pursuant to the privilege to defend others, would allow other persons
to defend that child against the attack of the abortionist. In some
situations where the peril is imminent and apparently not otherwise
avoidable, the law would allow the infliction of injury and perhaps even
death on the abortionist. More basically, however, if American law
regarded the unborn child as a person, there would be no abortuaries and
that child would be defended by legal authority rather than by private
individuals acting on their own initiative. While no appellate court,
state or federal, has upheld the necessity defense in the abortion
context, it is not surprising that the legalized infliction of violence,
in abortion, has caused some to respond, wrongly, in kind. This is so
because <Roe v. Wade>has loosened the bonds of civil order by legalizing
the intentional killing of the innocent.
In depersonalizing the unborn child, the Supreme Court prevents
interference by anybody with the killer of the unborn child and even makes
that killing a specially protected constitutional right. The recent
attacks on abortionists are a symptom of an unraveling of the civil order
which is directly traceable to <Roe v. Wade> and its sanction of the
execution of the innocent. As Pope John Paul 11 said at the Capitol Mall
in Washington on Oct. 7th, 1979, "If a person's right to life is violated
at the moment in which he is first conceived in his mother's womb, an
indirect blow is struck also at the whole of the moral order, which serves
to ensure the inviolable goods of man. Among those goods, life occupies
the first place." In her address on Feb. 3rd, 1994 to the National Prayer
Breakfast in Washington, Mother Teresa said that "the greatest destroyer
of peace today is abortion, because it is a war against the child, a
direct killing of the innocent child, murder by the mother herself. And if
we accept that a mother can kill even her own child, how can we tell other
people not to kill one another?"
St. Thomas Aquinas explained that we are morally obliged to obey a just
law. But if a human law "deflects from the law of nature," it is unjust
and "is no longer law but a perversion of law." St. Thomas explains that a
law may be unjust in two ways:
"First, by being <contrary to human good> . . . either in respect of the
end, as when an authority imposes on his subjects burdensome laws,
conducive, not to the common good, but rather to his own cupidity or
vainglory; or in respect of the author, as when a man makes a law that
goes beyond the power committed to him; or in respect of the form, as when
burdens are imposed unequally on the community, although with a view to
the common good. The like are acts of violence rather than laws; because
as Augustine says (<De Lib. Arb>. i.5), a law that is not just, seems to
be no law at all. Wherefore <such laws do not bind in conscience, except
perhaps in order to avoid scandal or disturbance>, for which cause a man
should even yield his right....
"Secondly, laws may be unjust through being <opposed to the divine good>:
Such are the laws of tyrants inducing to idolatry or to anything else
contrary to the divine law; and <laws of this kind must nowise be
observed>, because, as stated in Acts 5:29, we ought to obey God rather
than men" (<Summa Theologiae>, I, II, q. 96, art. 4; emphasis added).
The human law cannot validly permit murder. Despite the decree of the
Supreme Court, abortuaries, which are murder factories, have no moral
right to exist. <Roe v. Wade>, which defined the unborn child as a
nonperson subject to execution at the discretion of others, is an unjust
law and therefore void. So, too, can be otherwise neutral and just
trespass laws when they are applied to prevent nonviolent "rescues" at
abortuaries. Whether such a nonviolent rescue will be morally justified or
required depends on prudential judgments, the detailed discussion of which
would be beyond the scope of this essay. More to the point of this essay,
it does not follow from the injustice of <Roe v. Wade> that laws
forbidding the killing of the abortionist are unjust. <The Catechism of
the Catholic Church> states criteria that govern this matter:
N. 2258. "<Human life> is sacred because from its beginning it involves
the creative action of God and it remains forever in a special
relationship with the Creator, who is its sole end. God alone is the Lord
of Life from its beginning until its end: No one can under any
circumstance claim for himself the right directly to destroy an innocent
human being" (emphasis in Catechism).
N. 2262. "In the Sermon on the Mount, the Lord recalls the Commandment,
'You shall not kill,' and adds to it the proscription of anger, hatred,
and vengeance. Going further, Christ asks His disciples to turn the other
cheek, to love their enemies. He did not defend Himself and told Peter to
leave his sword in its sheath."
The Catechism, however, affirms a right of individuals to defend
themselves and others:
N. 2263. "The legitimate defense of persons and societies is not an
exception to the prohibition against the murder of the innocent that
constitutes intentional killing. 'The act of self-defense can have a
double effect: the preservation of one's own life; and the killing of the
aggressor.... The one is intended, the other is not'" (quoting St. Thomas
Aquinas, <Summa Theologiae>, II, II, 64, 7).
N. 2264. "Love toward oneself remains a fundamental principle of morality.
Therefore it is legitimate to insist on respect for one's own right to
life. Someone who defends his life is not guilty of murder even if he is
forced to deal his aggressor a lethal blow: 'If a man in self-defense uses
more than necessary violence, it will be unlawful: whereas if he repels
force with moderation, his defense will be lawful.... Nor is it necessary
for salvation that a man omit the act of moderate self-defense to avoid
killing the other man, since one is bound to take more care of one's own
life than of another's'" (<Summa Theologiae>, II, II, q. 64, art. 7).
N. 2265. "Legitimate defense can be not only a right but a grave duty for
someone responsible for another's life, the common good of the family or
of the state."
N. 2321. "The prohibition of murder does not abrogate the right to render
an unjust aggressor unable to inflict harm. Legitimate defense is a grave
duty for whoever is responsible for the lives of others or the common
good."
Note that the right to defend oneself or another does not authorize the
intentional killing of the aggressor. The principle of the double effect
governs here, as quoted above in N. 2263 of the Catechism. Fr. John
Hardon, S.J., explained this principle clearly with respect to operations
to remove the cancerous womb of a pregnant woman. Such operations can be
justified by the principle of the double effect because the death of the
child is an unintended effect of an operation independently justified by
the necessity of saving the mother's life. They do not involve the
intentional killing of the child for the purpose of achieving another
good-for example, the preservation of the mother's life. "To be licitly
applied," Fr. Hardon noted, "the principle must observe four limiting
norms:
"1) The action (removal of the diseased womb) is good; it consists in
excising an infected part of the human body.
"2) The good effect (saving the mother's life) is not obtained by means of
the evil effect (death of the fetus). It would be just the opposite, e.g.,
if the fetus were killed in order to save the reputation of an unwed
mother.
"3) There is sufficient reason for permitting the unsought evil effect
that unavoidably follows. Here the Church's guidance is essential in
judging that there is sufficient reason.
"4) The evil effect is not intended in itself, but is merely allowed as a
necessary consequence of the good effect.
"Summarily, then, the womb belongs to the mother just as completely after
a pregnancy as before. If she were not pregnant, she would clearly be
justified to save her life by removing a diseased organ that was
threatening her life. The presence of the fetus does not deprive her of
this fundamental right" (Fr. John A. Hardon, S.J., <The Catholic
Catechism> 1975, p. 337)
The principle of the double effect could apply to the defense of the
unborn in some cases. If you were in the room with an abortionist as he
was about to perform an abortion, you would have the moral right, and
probably the duty, to use reasonable force to prevent that imminently
threatened killing of the unborn child. Your action would be moral if you
used only the force necessary to stop the killing and if your intent was
to stop the killing rather than to harm the abortionist. It is most
unlikely, at least, however, that deadly force would be necessary or
justified even in that situation. And you surely would have no right
intentionally to kill the abortionist.
Apart from the just war, capital punishment, and a justified rebellion,
which will be mentioned below, no one ever has the moral right
intentionally to kill another person:
N. 2268. "The Fifth Commandment forbids <direct and intentional killing>
as gravely sinful. The murderer and those who cooperate voluntarily in
murder commit a sin that cries out to Heaven for vengeance" (emphasis in
Catechism).
N. 2269. "The Fifth Commandment forbids doing anything with the intention
of indirectly bringing about a person's death. The moral law prohibits
exposing someone to mortal danger without grave reason, as well as
refusing assistance to a person in danger.... <Unintentional> killing is
not morally imputable. But one is not exonerated from grave offense if,
without proportionate reasons, he has acted in a way that brings about
someone's death, even without the intention to do so" (emphasis in
Catechism; note omitted).
The only situations in which anyone ever has the right intentionally to
kill anyone are the just war, capital punishment, and a justified
rebellion (or what the Catechism calls "armed <resistance> to oppression
by political authority"-N. 2243, emphasis in Catechism). The just war and
capital punishment are decreed by the state, which derives its authority
from God. Armed rebellion involves an assumption by private persons of
that authority of the state. The death penalty is inflicted on a person
judged guilty of a capital crime and a just war or justified rebellion is
subject to the mandate of noncombatant immunity, which forbids the direct
and intentional killing of innocent noncombatants. See the Catechism, NN.
2312-2314. Whether in a just war or any other circumstance, no one ever
has the moral right intentionally and directly to kill an innocent human
being.
In self-defense or defense of others, against an aggressor, the intent
must be to defend, rather than to kill. Consider two situations. In the
first, Able, an abortionist's assistant in the killing room, suddenly has
a change of heart moments before the abortion begins. He has a right and
even a duty to use force to defend the child. He intends to defend the
child, not to kill the abortionist. In the second situation, Baker, an
opponent of abortion, shoots the abortionist in the parking lot as he is
approaching the building to do abortions a few minutes later.
One difference between the two cases is imminence. Able engages himself in
the immediate defense of the child; he has no intent but to defend that
child; he has no separate intent to harm or kill the abortionist. Recall
that, in justified self-defense or defense of others, the intent cannot be
to kill the aggressor, but rather to stop the attack. Baker, by contrast,
is not in the heat of a physical struggle to save the child. He thinks, "I
can get no closer than this. If I do not stop him he will go in there and
murder babies. So I will shoot him in the head." His purpose or motive is
to save children. But his intent in the act he performs that moment is to
blow the baby killer's head off in order to achieve that purpose of saving
children. Apart from the just war, capital punishment, or the justified
rebellion, which derive from the authority of God, no one may ever
intentionally kill anyone. Baker is intentionally doing an intrinsically
evil thing to achieve a good end. He assumes the authority of God, to
decide when that person will face the final judgment of God. His act
cannot be justified. St. Thomas, quoting St. Augustine, said that "'a man
who without exercising public authority, kills an evildoer, shall be
judged guilty of murder, and all the more, since he has dared to usurp a
power which God has not given him"' (<Summa Theologiae>, II, II, q. 64,
art. 3).
Some may argue that killing the baby killer in the parking lot is defense
of the child because that is as close as Baker could get. But if Baker may
kill the abortionist when he is not actually performing an abortion, why
does he have to limit himself to the parking lot? Why can he not conclude
that the only practicable way he can get a clear shot at him is to shoot
him on the golf course? Or at the video store? St. Thomas speaks of the
justified defender as one who "repels force." See the Catechism, N. 2264.
Unless we are to declare open season on abortionists, so as to justify
their intentional execution by anybody so inclined wherever practicable,
the right to defend the child must be restricted to the immediate
performance of the abortion. Even then it is practically inconceivable
that lethal force would have to be used.
The first of the above two examples is academic, because opponents of
abortion, practically, do not find themselves in abortuary killing rooms.
The issue is simply whether it is justifiable to kill abortionists,
wherever and whenever an opportunity to do so presents itself.
The intentional killing of an abortionist could be justified only if it
were incidental to a justified rebellion, which would itself be a just
war, in which the abortionist was rightly regarded as a combatant and
therefore a legitimate target. However, "Armed resistance to oppression by
political authority is not legitimate unless all the following conditions
are met: 1) there is certain, grave, and prolonged violation of
fundamental rights; 2) all other means of redress have been exhausted; 3)
such resistance will not provoke worse disorders; 4) there is well-founded
hope of success; and 5) it is impossible reasonably to foresee any better
solution" (Catechism, N. 2243; emphasis in Catechism). These criteria do
not justify the intentional killings of abortionists. Michael Griffin was
not resisting an immediate, unjustified attack by the Bureau of Alcohol,
Tobacco, and Firearms. By no stretch of the imagination can one reasonably
conclude that we are in an insurrectionary situation in the United States
today such as to justify his intentional killing of a person who was not
then attacking anyone. A justified rebellion involves the assumption by
private persons of the prerogative of the state to wage a just war. In a
rebellion the war is waged against the state itself. In <Roe v. Wade>, and
later cases, the Supreme Court, with the cooperation of Congress and the
Executive Branch, has precipitated an unraveling of the American civic
fabric. It cannot, however, be legitimately concluded that the situation
has disintegrated so far beyond other means of correction that armed
rebellion is justified in whole or in part.
Rebellion, incidentally, is not something to be lightly sanctioned. The
just war waged by a government has the limiting feature that it can be
waged only by the duly constituted public authority. A rebellion, by
contrast, involves an assumption of all or part of that public authority
by private persons who themselves decide that they are justified in taking
over the power of the state in whole or in part. And if one can so decide,
so can another. In <Populorum Progressio>, in 1967, Pope Paul VI said that
"a revolutionary uprising-save where there is manifest long-standing
tyranny which would do great damage to fundamental personal rights and
dangerous harm to the common good of the country-produces new injustices,
throws more elements out of balance, and brings on new disasters. Real
evil should not be fought against at the cost of greater misery"
(<Populorum Progressio>, N. 31).
The divine prohibition of intentional and direct killing (apart from the
just war, including justified rebellion, and capital punishment) is
absolute. In his 1993 encyclical, <Veritatis Splendor>, Pope John Paul II
stated:
"The <negative precepts> of the natural law are universally valid. They
oblige each and every individual, always and in every circumstance. It is
a matter of prohibitions which forbid a given action <semper et pro
semper>, without exception, because the choice of this kind of behavior is
in no case compatible with the goodness of the will of the acting person,
with his vocation to life with God and to communion with his neighbor. It
is prohibited- to everyone and in every case-to violate these precepts.
They oblige everyone, regardless of the cost, never to offend in anyone,
beginning with oneself, the personal dignity common to all.... The Church
has always taught that one may never choose kinds of behavior prohibited
by the moral Commandments expressed in negative form in the Old and New
Testaments" (<Veritatis Splendor,> N. 52).
The question arises whether infliction of nonlethal injury or property
damage on abortionists is similarly prohibited absolutely. Instead of
killing the abortionist, can you break his arms to prevent him from
killing babies? Or can you destroy his property to put economic pressure
on him to stop killing babies? If Baker intentionally wounded the
abortionist in the driveway, for example, by shooting him in the arm, that
act would still lack the imminence necessary for legitimate defense of
others. It would therefore seem to be unjustified in principle. In
response to the question, "Whether it is lawful for a private individual
to kill a man who has sinned?," St. Thomas rejected the infliction of
"harm" which is not sanctioned by public authority: "It is lawful for any
private individual to do anything for the common good, provided it harm
nobody: but if it be harmful to some other, it cannot be done except by
virtue of the judgment of the person to whom it pertains to decide what is
to be taken from the parts for the welfare of the whole" (<Summa
Theologiae>, II, II, q. 64, art. 3).
In any event, the use of violence, whether lethal or nonlethal, against
abortuaries and abortionists is unjustified on several prudential grounds.
It is not the most effective way to save the lives of unborn children
threatened by abortion. It is counterproductive in that it distracts
attention from the real, and spiritual, nature of the problem, and it
diverts pro-life efforts away from more useful approaches. Moreover, it
accelerates the disintegration of the civil order with predictably harmful
impact on the common good.
The use of violence in the pro-life cause must be utterly rejected. If we
attempt to combat the abortion movement with force, we oppose its
strongest weapon, the coercive power of the state, with our weakest. The
most effective on-site activity in defense of unborn children is concedely
legal prayer and counseling. That activity does save lives and it can be
carried on day after day. By contrast, if an obstructive rescue occurs on
Tuesday, its participants are in jail on Wednesday or otherwise entangled
in legal proceedings which may keep them from prolife activity for a
considerable time.
Nonviolent rescues have probably done more than anything else to bring the
reality of abortion to public attention. Pursuant to the necessity
defense, they ought to be considered legal as well as moral. However, as
indicated in <Madsen v. Women's Health Center>, decided on June 30th,
1994, the law is a stacked deck in this respect. The Supreme Court will
distort even settled legal principles to insulate abortionists from
interference and even annoyance by pro-life advocates. It will almost
certainly become increasingly difficult to carry on even peaceful,
nonobstructive prayer and counseling efforts.
As the anti-life state increases its pressure against all forms of
pro-life advocacy, we can expect more opponents of abortion to respond
with violence as the only recourse. But now more than ever, the pro-life
movement must reject all forms of violence even against baby killers and
their abortuaries.
What is wrong in the pro-life movement is not that we have not bombed or
shot. What is wrong is that we have not spoken the truth and we have not
prayed enough. For two decades, the movement has appreciated, abortion as
a legal and political problem. In a good-faith effort to "save lives," the
leaders of the establishment pro-life movement have proposed one
compromise after another, affirming in their actions, despite their
rhetoric, that the right to life is alienable-and therefore that the
unborn child is a nonperson who, though innocent, may be executed in at
least some cases. By permeating the public discourse with the message that
even the pro-life "leaders" think that innocent life is negotiable, they
have immeasurably increased the toll of innocent lives by abortion and now
by euthanasia. The result is a climate of frustration among those who know
by reason as well as faith that we, and the law, can never validly
tolerate the execution of the innocent. This climate is conducive to the
emergence of some who delude themselves into thinking that murder can be a
solution. The pro- death forces who dominate our government would like
nothing more than to see the pro-life movement disintegrate in spasms of
bombing and shooting. Such would confirm the pro-death assumption that
there is no objective morality and that the issue is reducible to the
utilitarian exercise of power.
It is therefore more important than ever to reject violence in the
pro-life cause. Instead, we should employ our strongest weapons: the truth
and prayer.
We should speak the truth in the political realm. No candidate who
believes that the law should authorize the execution of the innocent, born
or unborn, in any case, is fit to hold any public office. Nor should any
law be supported-let alone proposed-which would authorize such execution
in any case. It is time to go back to the position taken by Cardinals
Krol, Medeiros, Manning, and Cody in their Senate testimony in 1974. They
urged "legal and constitutional conformity to the basic truth that the
unborn child is a 'person' in every sense of the term from conception."
They refused to support the Buckley Amendment because it would have
allowed abortion to save the life of the mother. And they insisted that
"the prohibition against direct and intentional taking of innocent human
life should be universal and without exceptions." If we had followed that
principle, in action as well as rhetoric, it is likely that we could have
saved millions of lives. Pragmatism does not work, especially in this
area. But the truth can work if we will affirm it without compromise.
On the educational front, it is time for the pro-life movement to confront
contraception as a root cause of abortion. This is most important in light
of the prevailing mislabeling of early abortifacients as contraceptives.
Further, the movement must redouble its efforts to provide help for
mothers with problem pregnancies and to facilitate adoption as a
responsible alternative to abortion.
The educational effort should put front and center the reality that the
only coherent basis for affirming absolute rights in the human person is
that he is an immortal creature made in the image and likeness of God,
with a dignity which absolutely transcends the interests of the state.
Finally, and most importantly, the pro-life movement must put its primary
reliance on prayer, especially through the intercession of Mary, who is
the Mother of Life. Mary is the "Mother of each and every one of us, the
Mother who obtains for us divine mercy" (Pope John Paul II, <Veritatis
Splendor>, N. 119). The rosary is a most powerful weapon for us here, with
an appeal far beyond denominational lines. We must pray for our country,
for the women who contemplate, or have committed, abortion, and especially
for the abortionists and all who support them.
The philosophers and politicians of the Enlightenment have tried for three
centuries, and especially in the last few decades in this country, to
build a society as if God did not exist. Their premises are secularism,
relativism, and the cult of the autonomous individual. But their effort is
a total failure. We are living through what Fr. Francis Canavan, S.J.,
aptly called "the fag end of the Enlightenment." And the Christian
restoration of faith and culture, primarily under the leadership of Pope
John Paul II, is well underway. The pro-life movement can play an
important part in that restoration if we will adhere to objective moral
principle, speak the truth without compromise, and, most importantly,
pray.
This article was taken from the September 1, 1994 issue of "The Wanderer,"
201 Ohio Street, St. Paul, MN 55107, 612-224-5733. Subscription Price:
$35.00 per year; six months $20.00.
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