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Voluntary Manslaughter and the Tiller Abortion Killing

January 12th, 2010 Leave a comment Go to comments

Paul Cassell has a post discussing whether the killer of the abortionist Dr. Tiller can plead voluntary manslaughter because he believed he had to kill Dr. Tiller to save a baby’s life. Professor Cassell argues no, because he killed Dr. Tiller while Dr. Tiller was in church, so the danger to the baby was not imminent. That is persuasive.

Prof. Cassell also notes that the plea only works if Tiller’s baby-killing was unlawful, and says it is lawful because abortion is lawful.

I’m not so sure on this second point. Remember, Dr. Tiller performed unusual, late-term, abortions. Even the killing of a 9-month, viable, baby can be lawful if the umbilical cord isn’t cut yet (is that the dividing line? I seem to recall some recent case where it was). But it isn’t always lawful—there has to be danger to the mother’s mental health or something like that. Suppose the killer reasonably believed that Dr. Tiller was not following all the abortion rules, so some, if not all, of the babies he killed were being killed unlawfully. Putting the Imminence issue aside, could that prove voluntary manslaughter? What degree of certainty would the killer have to have that babies were being killed for voluntary manslaughter to be valid? And how sure would the jury have to be that this was his motive and that it was a reasonable motive?

Dr. Tiller’s unusual speciality is also, by the way, what made his killing have a special impact on abortion. Ordinarily, killing an abortionist would have little effect on the number of abortions performed, because there are substitute doctors. Tiller’s case is different because few doctors in America have the stomach to perform late-term abortions like he did, so killing him removed a major supplier from the market.

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