Abortion Foes Test Defense in Appeals Court

In a case that could affect anti-abortion protests throughout California, a state appeals court heard arguments Wednesday on whether three Ventura protesters can use the “necessity defense” to justify blockading a Ventura family planning clinic.

The protesters argued unsuccessfully at their September, 1989, trial that they needed to violate the law to prevent abortion, which they consider a “greater evil” than blocking the clinic entrance.

Catherine Jean Garziano, Loren Gregory Broyles and Raymundo Rodriguez Jr. were convicted in Ventura County Municipal Court of obstructing a public passage and refusing to disperse at the Family Planning Clinic on Telegraph Road on July 6, 1989.

When an appeals panel of the county Superior Court upheld the convictions last December, the protesters took their case to the 6th Division of the state 2nd District Court of Appeal, which met Wednesday in Santa Barbara.

The necessity defense has been generally rejected, except in certain cases where someone’s life or property was in danger. One such case involved women prison inmates who were acquitted of escape charges after they argued that they had to break out of prison to avoid sexual assault by other inmates, said Ventura County Deputy Dist. Atty. Michael D. Schwartz.

On Wednesday, Robert D. Silver, the protesters’ attorney, argued that his clients were trying to prevent all abortions--not just those performed on women less than 20 weeks pregnant, which are allowed by the 1973 U.S. Supreme Court decision in Roe v. Wade.

Witnesses had testified at the protesters’ trial that the Family Planning Clinic performs abortions on women who were up to 24 weeks pregnant, Silver told the court.

Silver argued that some fetuses are able to live outside the womb at 20 to 24 weeks of age. California case law allows abortions up to 24 weeks if the fetus is not viable, meaning that it is unable to survive outside the womb.

“Your clients were not attempting to prevent women who had viable fetuses from getting abortions,” Associate Justice Richard W. Abbe told Silver. “They were trying to shut down what they called an abortion clinic, and were not discriminating between women who were one week pregnant or eight weeks pregnant.”

Silver continued: “I believe in California we still have an open question: It appears a fetus that has reached 20 weeks can be viable and it would be illegal to perform an abortion.”

But Schwartz argued that California law allows abortions of fetuses more than 20 weeks old if they are not viable, and even after the 24th week if necessary to save the mother’s life.

He also questioned the protesters’ concept of “greater evil.”

“Evil usually means an act of God, like a flood or a fire,” Schwartz said. “You can trespass on someone’s property if their house is burning to use their garden hose to put out the fire.”

Other protesters have been unsuccessful in using the necessity defense against trespassing charges for blocking military bases and nuclear power plants, he said.

If the necessity defense were permitted and such conduct became widespread, “you’d have a state of anarchy,” Schwartz told the three appeals justices.

Schwartz also argued that the necessity defense can be used only if there is no legal alternative to the illegal activity.

Courts have ruled that protesters against war, abortion and nuclear power have the option of writing their congressmen or working to unseat politicians whose views they do not support.

“We agree on the political cases of protests against the Vietnam War and so on because we find there was a reasonable alternative. There was nothing that was imminent,” Silver said. “In abortion, you have an imminent danger of the termination of an unborn child.”

Associate Justice Arthur Gilbert cited Vietnam War protests at draft board offices.

“The imminent danger is as valid in that context as it would be in this context,” he told Silver. “If you want to protect people, fine, but you must be prepared to suffer the consequences of that protection.”

Schwartz said later in an interview that he thinks that the court will “create a precedent” in the Ventura case for other California prosecutors. He said he hopes that the court will rule against the necessity defense. Schwartz said he expects a ruling within 45 days.

Supreme courts already have ruled against the necessity defense for anti-abortion protests in Alaska, Illinois, Maryland, Missouri, Pennsylvania and Virginia, he said.