Appeal Seeks To Establish Right to Trespass on Clinic Property To Stop Involuntary Abortions

TMLC ^ | 2-12-2003 | staff

[Notwithstanding]

In an appeal filed last week, a Wisconsin Appellate Court is being asked to recognize under State law a “necessity defense,” which would give pro-life demonstrators the right to trespass on clinic property in order to stop involuntary abortions. The controversial position is based on the common law rule that one is privileged to enter on another’s property if it is or reasonably appears to be necessary to prevent serious harm to a third person. According to the Wisconsin State Constitution, the common law is preserved in the State until it has been altered or changed by the legislature.

The Thomas More Law Center, a national, public-interest law firm based in Ann Arbor, Michigan, is seeking to have this common law defense recognized in the abortion context on behalf of William Goodman. According to Robert Muise, the Law Center attorney handling the case, “We acknowledge that this appeal is controversial because of the politically charged nature of the abortion debate. However, we are not asking the court to determine the legal status of abortion. Rather, we are asking the court to determine whether the common law privilege of necessity is available to pro-life demonstrators as a defense against a claim of civil trespass. ”

The controversy began in December 2000, when William Goodman peacefully entered the Madison Abortion Clinic to help the mothers scheduled for abortions that day. He believed that there were women present at the abortion clinic who were under duress and had not given their voluntary and informed consent to have an abortion. Shortly after entering the clinic, he was assaulted by a worker and handcuffed by a security guard. Police arrived and escorted him from the building.

Goodman was eventually sued by Meriter Hospital, the landlord of the Madison Abortion Clinic, for trespass. The Thomas More Law Center defended Mr. Goodman and successfully defeated on free speech grounds the Hospital’s attempt to get a “buffer zone” in place that would have kept the pro-life demonstrator more than 100 feet away from the clinic entrance. Goodman counter-sued the hospital and the abortion clinic for assault and battery and received a judgment in his favor against the abortion clinic, its owner, and the worker who attacked him. An appeal was filed on Goodman’s behalf because the court entered an order that enjoins him from trespassing.

Carol Everett, a former abortion clinic operator, gave sworn testimony in favor of the Law Center’s position. She noted that it was her experience that women were never told the truth about their baby or what might happen to them as a result of the abortion; that women were never given adequate truthful information to make an informed decision about the abortion; and that many women who sought abortions were under duress or coercion to terminate the life of their “unwanted child.”

Based on evidence such as this, the Law Center’s brief argued that if it reasonably appeared necessary for Goodman to enter the Madison Abortion Clinic in order to prevent serious harm to third persons, namely the women and their unborn children who would be harmed by the abortion, then the necessity defense should apply regardless of Goodman’s politics or religious beliefs. The Law Center pointed out that there is no constitutional right to perform an abortion, and any medical procedure performed without voluntary and informed consent is a battery under Wisconsin law.

[Catspaw]

Here's the info about the post-conviction relief in Goodman's on-line case file. I note that there had been an appeal (the post-conviction relief would've been at the trial court level), but the appeal was dismissed subsequent to entry #65.

Note 65:

Additional text
Postconviction Motion and Decision - Court vacates the defendant's conviction and will schedule a final pre-trial and new trial in this matter. http://ccap.courts.state.wi.us/servlet/us.wi.state.courts.internet.access.GetJSP?JSP=CourtRecordEvents&CaseNumber=00CM004739&CountyNumber=13&CountyName=Dane&SessionIdentifier=

[BlackElk]

We agree and disagree on this. The defendant would not be challenging the criminal trespass law itself. A defense of necessity essentially concedes a violation of the underlying criminal trespass statute but seeks to trump the statute by an application of a common law defense. "Even if I did superficially violate the statute, so what? After all my reasons were sufficient at law to justify the violation and prevent my conviction."

By analogy, all jurisdictions have laws rendering homocide or assault of a person criminal acts, BUT, even if a given jurisdiction has no self-defense statute, one may raise the common law defense of self-defense. One of the Dirty Harry movies has Harry Callahan explaining why he felt justified in shooting and killing a man on the other side of the street. Harry said: He was chasing a woman and had a butcher knife raised. I decided that he was not taking up a collection for the Red Cross. That would be the common law of defense of another and one does not have to be a police officer to exercise it. It is also known as "vicarious self-defense." No one argues that statutes criminalizing homocide or assault are invalid when raising such defenes. Rather, by raising the defense, one is saying: Even if the criminal law wqas violated, there should be no conviction because the action that appears to have violated the statute is suffciently excused by overriding and intervening causes.

It is very likely that nothing is being challenged other than a trial court ruling on the admissibility of evidence which, if believed, would make out a common law defense of necessity. A plea of nolo contendere (I choose not to contest) leads to a guilty finding for the purposes of the criminal matter only (it is typically not usable in a civil action by the "aggrieved" landowner or lessee). A plea of guilty would be useful to a plaintiff landowner or lessee in a civil action for damages. The key to a nolo contendere plea from the point of view of the prosecution and court is judicial effciency and avoiding the unnecessary expenditure of time and financial resources on a contested trial. It sounds like the Appellate Court overruled the trial judge, ordered a new trial and ordered the necessity defense admissible. The state may choose to appeal to the state Supreme Court (whatever its name) of Wisconsin. The defendant may choose, with the agreement of the prosecution, to stipulate to a written set of facts mutually prepared as to the criminal offense and then have the sole issue at trial be the necessity defense.