February 8, 1991: Lovejoy Surgicenter v. Portland, Oregon ProLifers
Note: The following is the text of closing arguments I prepared at the request of attorney William Bailey, in February of 1991. It is reprinted here at the request of various people interested in the case. Mr. Bailey defended myself and the other thirty prolifers. I've eliminated arguments that addressed the specific details of the trial, of which most readers would not be aware. Mr. Bailey himself developed and presented those specific arguments, and was also able to include much of the following that I prepared for him. The Lovejoy abortion clinic requested a half million dollars in punitive damages against each of the defendants—for totally peaceful and nonviolent actions—to persuade us not to rescue again. On February 11, 1991, nine of the twelve jurors agreed to award the abortion clinic 8.2 million dollars, averaging about $250,000 per defendant. Despite their efforts to do so, as of January 1997, a relatively small portion of the total judgment has been successfully collected by the abortionists.
The United States of America came into existence because a group of people believed that certain laws of England robbed people of their basic rights. Unfortunately, this country has at times had its own laws that violated human rights. This has required that some citizens disobey those laws to stand up for and draw attention to those rights.
Peaceful civil disobedience has had a strategic role in defending human rights in our country. At any given time in our history there have always been groups of people that the laws of society have discriminated against. Likewise, there have always been people who have acted in civil disobedience to call attention to this discrimination.
Civil disobedience is not ordinary law-breaking. It is highly selective in its aim, peaceful in its methodology, and is willing to face legal consequences. If you rob a bank and shoot someone, you have disobeyed civil law, but you have not done an act of “civil disobedience” in the historic sense. Everyone knows the difference between Martin Luther King on the one hand, and Bonnie and Clyde on the other. Civil disobedience is aimed at improving society, not destroying it.
Civil disobedience is not revolution. Revolution is violent and sweeping. Civil disobedience is breaking a specific law in a context of overall respect for the law. I think you can clearly see the difference between these defendants and common criminals. These people are model citizens. They love their country. But they also love the innocent. They also believe that people who are young and small have rights. They believe that other people need to stand up for the rights of those who are too small and weak to stand up for themselves. Fortunately we live in a country that recognizes selective peaceful civil disobedience as a legitimate means of expression. The history of such civil disobedience is long and varied, and is woven into the very heart of our society.
One of the first widespread movements of civil disobedience in this country was in response to the laws permitting and protecting slavery. In 1793 the United States Congress passed the First Fugitive Slave Law. It was a crime to give assistance to a runaway slave. This law applied in the free states as well. Because some people had the compassion and courage to disobey this law, slave-owners bitterly complained about their financial losses.
The slave-owners argued that they had the legal right to do with slaves what they wished. They claimed that their personal rights and freedom of choice were at stake. They said that the slaves were not really persons in the full sense. They pointed out that they would experience financial loss if they were not allowed to have slaves. They maintained that others could choose not to have slaves, but had no right to impose their anti-slavery morality on them. They said they should keep to themselves their religious convictions about human rights. They took them to courts like this one, asking for financial awards and seeking to punish further those standing up for the rights of slaves.
It's true that the slave-holding industry had the law on its side, just as today the abortion industry has the law on its side. In the Dred Scot case of 1857 the Supreme Court determined in a 7-2 decision that slaves were not legal persons and were therefore not protected under the Constitution. In 1973 the US Supreme Court, by another 7-2 decision, determined that unborn children also were not legal persons and therefore not protected under the Constitution. One group was condemned because they were too black, the other because they were too young and too small. Both were the disposables, the castaways of a society that needed to be reminded of their personhood and rights.
The Second Fugitive Slave Law made the crime of intervening on behalf of a slave even more serious. The penalty was a fine of $1,000 and imprisonment up to six months, as well as civil damages to the slave owner of $1,000 per slave. President Fillmore declared that resistance to the Fugitive Slave Law was an act of treason. It was both illegal and unamerican to rescue slaves.
In the midst of this came the Underground Railroad. It consisted of compassionate and principled Americans. At great risk to themselves they provided food, shelter and protection to slaves running from the tyranny of their masters. The Underground Railroad had its own maps, secret routes, and passwords. It was made up not of criminal-types, but of the most religious and moral citizens.
President Abraham Lincoln had this to say about the Fugitive Slave Law and those who sought to punish participants in the Underground railroad:
It is a very strange thing, and not solvable by any moral law that I know of, that if a man loses his horse, the whole country will turn out to help hang the thief; but if a man but a shade or two darker than I am is himself stolen, the very same crowd will hang the one who aids in restoring him to liberty. Such are the inconsistencies of slavery, where a horse is more sacred than a man; and . . . if one man chooses to make a slave of another, no third man shall be allowed to object.
One participant in civil disobedience was Calvin Fairbank, who saved a black family of three, then served five years in prison for doing so. Not long after being released, he helped a female slave escape from Kentucky, and was put back in prison another fifteen years.
When Quaker Thomas Garret was criminally convicted for breaking the law to help slaves, he was fined to the point of bankruptcy. He then said to the court,
Judge, thou hast not left me a dollar, but I wish to say to thee, and to all in this courtroom, that if anyone knows of a fugitive who wants a shelter and a friend, send him to Thomas Garrett and he will befriend him.
Deliberately deciding to live right on the line of the underground railroad, for thirty-three years Levi Coffin and his family opened their home to over a hundred slaves each year. Called in before an Ohio grand jury, Coffin later recalled his defense of his actions:
I had read in the Bible when I was a boy that it was right to feed the hungry and clothe the naked, and to minister to those who had fallen among thieves and were wounded, but that no distinction in regard to color was mentioned in the Good Book, so in accordance with its teachings I had received these fugitives and cared for them.
I then asked the prosecutor, “Was I right, Friend, in doing so?”
He hesitated and seemed at a loss how to reply. I continued, “How does thy Bible read? Was it not as I have said?”
“Yes,” he answered, “it reads somehow so.”
In 1846 Henry David Thoreau was arrested in Massachusetts for refusing to pay a tax that sponsored slavery and the taking of land from Mexico. At one point Thoreau also aided two fugitive slaves, violating the Fugitive Slave Act. He then wrote his famous essay, On the Duty of Civil Disobedience.
Mohandus Gandhi lived in South Africa as a young man. He became a key leader in the Indian community's fight for civil rights. He opposed the racist policies of South African apartheid. Influenced in part by Thoreau's essay, Gandhi developed the principle of nonviolent civil disobedience. This included publicly burning the minority registration cards that were tools of apartheid.
When he returned to his native India in 1914, Gandhi became leader of the Congress Party. Like Americans two centuries earlier, Gandhi believed that India had the right to rule itself, and not be subjected to the British. He initiated a campaign of peaceful civil disobedience to certain unjust laws of the governing British authorities. Gandhi was arrested and imprisoned many times. Thousands of his followers were beaten and killed in peace marches, usually making no attempt to defend themselves. Their brave but costly efforts eventually led to India's independence.
Gandhi was also heavily influenced by Christ's sermon on the mount. He interpreted the command to turn the other cheek as a means of passive resistance for the sake of righteousness. He taught his followers the art of nonviolent intervention. Gandhi felt that if people believed so strongly in morality and justice that they were willing to take abuse for standing up for it, then this would prompt society to reexamine its injustices and eventually bring about change.
Gandhi's nonviolent civil disobedience was a primary inspiration for the American civil rights movement spearheaded by Martin Luther King, Jr. King spoke of “the moral responsibility to disobey unjust laws.” A Baptist preacher, he believed that the Christian gospel had clear social implications. He believed that racism, though promoted by civil laws, was inconsistent with the gospel. He believed that Christians should peacefully and non-violently stand up for what was right, even at their own expense.
King's civil disobedience included “sit-ins” where blacks were not legally permitted. He and hundreds of others were arrested for trespassing dozens and dozens of times, and spent months in prison. King believed the way of Christ was the way of firm but peaceful insistence on what was right. He agreed with Gandhi that the willingness of people to stand for human rights would eventually bring about change.
Martin Luther King adopted certain guidelines and rules of conduct for these united public expressions of civil disobedience. He knew that conflict was inevitable, but wanted to minimize the physical danger to protestors, police, and the restaurants and other businesses on whose property they protested. His followers were trained in nonviolent protest. This was in stark contrast to other reformers, whose methods were violent. This nonviolent alternative allowed people to express their deepest convictions about human rights in a peaceful manner.
King's sincere goal was to bring the biblical principles of love and justice to every member of society, despite his color, gender, age or any other characteristic that made him a minority.
Martin Luther King said this:
One may well ask: how can you advocate breaking some laws and not others? The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. Conversely, one has a moral responsibility to disobey unjust laws.
What we must remember about those who helped the slaves and those like King who stood for civil rights is that when they were actually doing those things public opinion was very much against them. Next time you walk by Portland's Justice Center, where many of the defendants have spent time in jail, look at the inscription on the Southwest corner of the building. There in large letters is this great quote: “Injustice anywhere is a threat to justice everywhere.” Underneath is the date 1963, preceded by the name of the man who said it—Martin Luther King.
During this trial we took a day off in honor of Martin Luther King's birthday. But in 1963, when he spoke those noble words inscribed on the Justice Center, King was being found guilty in courts just like this and being imprisoned in jails just like our Justice Center. He was treated like a common criminal because he broke civil laws. Now history has changed its verdict. Now the same legal system that prosecuted him recognizes that King was right and the law was wrong. The law has changed, and so—for many Americans, at least—has the verdict on King's civil disobedience.
The verdict has also changed on those who defended the laws that King broke. And it has changed on the judges and juries that found him guilty and punished him for trespassing and illegal protest. Why? Because we have come to realize that the choices society made to take away the rights of black people were morally wrong, and that the choices King and others made to protest this injustice were morally wrong.
You should also understand that these defendants are committed to women's rights. They do not place the baby's right over the mother's. They affirm the mother's rights are every bit as great. They simply believe that letting the baby live will not kill the mother, but abortion will kill the baby. Since the baby is too small and weak to speak up for herself, someone else has to do it on her behalf. To affirm the child's right to live is not to be against the rights of his mother, any more than to defend the rights of blacks is to be against the rights of whites.
What would you do given the same conviction as the defendants?
Would you ever break the law to save what you believed was an innocent human life? If so, you can sympathize with these defendants.
What if you lived in India when it was legal and commonplace to burn to death a man's widow after he had died? Can you imagine sitting on a jury and being asked to punish someone who had violated the law by trying to save the life of the poor woman about to be burned?
What would you do if you knew that it was against US law to harbor fugitive slaves? What verdict would you as a jury member bring on someone who had done so?
What if it was World War II and someone had broken the laws of Germany by saving Jews headed to a death camp? What would be your verdict on such people?
What if it was World War II in our own country and your Japanese neighbors were herded off to interment camps?
What if you were on a jury deliberating about those who refused to cooperate with US laws permitting the exploitation of American Indians?
What if you sat on a jury evaluating Susan B. Anthony and other women's rights advocates for breaking the law? What verdict would you arrive at? Of course, if you are a woman you couldn't have even been on a jury early in our country's history. It's only been in the last eighty years that women have even been allowed to vote—and without public protest and civil disobedience you still might not be allowed to vote.
What if our society starts killing the elderly without their consent because they no longer have a contribution to make? What if you sat on a jury evaluating someone who had broken the law to save a grandmother's life?
What if, as two Nobel Prize winning Americans have seriously proposed, the law is changed so that babies are not declared alive until three days or several weeks after birth? What if you sat on a jury evaluating someone who had interfered with parents rights by rescuing a two day old baby about to be killed?
What if you sat on a jury to rule whether punitive damages should be placed on those who had already gone to jail and lost income and jobs because they had stood up for the slaves, for the Jews, the Japanese, the Indians, the women, the elderly, or the babies? This is not hypothetical—you are sitting on just such a jury right now. Of course, the plaintiff wants you to believe otherwise—just as the plaintiffs in all the other civil rights cases wanted juries to believe otherwise. We always think these cases are happening somewhere else. Well, this one is happening here, and you're on the jury.
Suppose that you too believed unborn children were innocent human beings with the right to live. You may or may not believe this, but just suppose for a moment you did. Would you not feel obligated to try to save their lives? You would pursue every legal means, just as these defendants have. But would you not also consider the possibility of peacefully breaking a trespass law if that's what it took to save the child—just as you would break a trespass law to save a child from drowning in a lake or dying in a burning building? Are not the defendants' actions consistent with what they believe about unborn children?
Does the idea of unborn children having the right to live seem foreign and unfamiliar to you? If it does, it is surely no more foreign and unfamiliar than the equal rights of slaves and Indians and women seemed to people who sat on juries over the last few hundred years in this country. If history teaches us anything, it's that society is capable of being incredibly blind to the rights and value of people which it later comes to realize.
You have heard that these defendants believe that unborn children are human beings with basic rights. Unfortunately the court has not allowed the defendants to present the many scientific, medical, common sense, biblical, and personal reasons they believe this. Hence you might be tempted to condemn them for their actions because you don't understand the basis for their belief. One writer points out that Martin Luther King experienced this same problem of being unable to express his reasons:
It regularly occurred that the lights for the television cameras would be turned off during Dr. King's speeches when he dwelt on the religious and moral-philosophical basis of the movement for racial justice. They would be turned on again when the subject touched upon confrontational politics. In a luncheon conversation Dr. King once remarked, “They aren't interested in the why of what we're doing, only in the what of what we're doing, and because they don't understand the why they cannot really understand the what.”
The defendants are loyal Americans who affirm the ideals of this country expressed in its most sacred documents. Thomas Jefferson said “the sole purpose of good government is to protect the welfare of people.” The Preamble to the Constitution says our republic was formed to “establish justice” and “promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” The defendants believe that our posterity have the right to see the light of day, and to experience the freedoms we do.
The Declaration of Independence states, “We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.” All men are created equal, not merely born equal. The writers of these documents knew that life began in the womb, not outside it. They knew that life began at the moment of creation, the moment of conception, not the moment of birth.
Above the Law?
These defendants are trying to stand for the ideals of human rights this country was founded on—ideals from which this country has sometimes drifted until people of conscience have stepped forward to draw attention to them.
The plaintiff has attempted to portray the defendants as religious bigots trying to force their minority morality on everyone else. On the contrary, one does not have to be a Christian to recognize that unborn babies are human beings. And one does not have to be a Christian to believe that young and small human beings have as much right to live as older and larger human beings. Just because Martin Luther King was a Baptist preacher doesn't mean you have to be a Baptist to believe black people deserve equal rights.
This is not just a religious issue. It is a human issue, it is a civil rights issue. It is about the most basic right that any person, young or old, big or small, can have. It is about the right to live.
Furthermore, the defendants have never tried to push their morality on people who are consenting adults and decide to make moral choices other than theirs. The one and only time they have turned to civil disobedience is in the case when an innocent victim's life is at stake. When he or she is not allowed to choose, and not allowed his most basic right to live.
Don't believe that these people are any less prochoice than you are. You are not prochoice when it comes to slavery, rape, kidnapping, armed robbery, exploiting women or killing children, are you? And you would not be prochoice about slavery even if it were legalized again, would you? If rape were legalized, would it change your opinion of rape? No, because legal or illegal it would still be rape. If child-killing is legal it does not change the fact that an innocent child dies.
These defendants fully believe that abortion results in the death of a precious child. If you believed this you wouldn't be any more prochoice about abortion than you would be about killing five year olds, would you? These people are prochoice in virtually every area. But they are not prochoice about what they believe is killing children, whether legal or illegal. Because to them a baby is a baby, and what is legal is not automatically what is right. Search your heart . . . is your own belief really so far from theirs?
The defendants are not above the law, but obey it conscientiously in almost every area. The exception is when it comes to the deaths of innocent people. And when they rescue they choose either the fines or the jail time as payment for their actions. They have not fled, refused to show up in court, or failed to turn themselves in.
In his “Letter from a Birmingham Jail,” Martin Luther King stated,
One who breaks an unjust law . . . to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law.
These people believe that laws are usually just, but that sometimes there are laws that hurt the innocent. These would be the first people to try to save a woman from being raped, even if rape were legal. They would be the first to save someone from slavery, even if slavery were still legal. They also desire to save a baby from being killed, even if baby-killing is legal. They further believe that women have been deceived and lied to by abortion clinics. They believe that many women carry the guilt of abortion the rest of their lives. These are the beliefs they have acted on in rescuing. Judge for yourself . . . aren't their actions consistent with their beliefs?
Preventing the Choice of Abortion?
Do these defendants really believe that they can stop a woman who wants an abortion from getting one? Of course not. They know that in most rescues the police will remove them within an hour or two, and many women will get abortions the same day. Furthermore, they know that even if rescues successfully close the clinic for the day, there are still over 300 full business days each year in which women can get abortions there. Furthermore, there are three other abortion clinics nearby, also open for abortions over 300 days a year.
The defendants know they are not stopping the vast majority of abortions. They know that if a woman still wants an abortion she will have no problem getting one. What they hope is that after seeing people who are willing to peacefully stand at the doors of the clinic, and after receiving literature from sidewalk counselors, that some women, if only a few, will change their minds and let their babies live.
They know that once they hold their babies, these women will always be grateful someone cared enough to prompt them to reconsider their abortion. In fact, women have told them this very thing. Perhaps only a handful of children and mothers are saved from abortion this way. But these defendants believe that a handful of precious human beings is worth the effort.
The defendants know that their actions are modest, that they are barely making the tiniest dent in the multi-billion dollar abortion industry. But they believe their efforts, while small, are significant to a small group of people. And they hope and pray that someday they may stimulate a larger group of people to rationally reevaluate their beliefs about the unborn children and their worthiness to live.
Danger to Women Getting Abortions
The Plaintiffs have made much of the notion that many women come to the clinic for procedures other than abortions. Yet they refuse to say what percentage are abortions. The defendants have reason to believe that 90% of the procedures of the clinic are abortions. If they are wrong, the clinic can easily disprove it by divulging this information, but they will not, for reasons that should be obvious. And while one out of every ten women coming to the clinic may be there for some other reason, the defendants believe that the inconvenience of delaying or rescheduling an appointment, while unfortunate, is not as weighty as the painful death that will be experienced by the children who will otherwise momentarily die.
The defendants recognize that their demonstrations lead to challenging situations that they would like to avoid, just as acts of peaceful civil disobedience always have. On the other hand, they know that forty innocent children are sure to die at Lovejoy on any Saturday. And they know that many of the forty women will one day long to hold in their arms the children that have died. These realities outweigh the downside of their presence.
As to the charge of the defendants' presence and singing making medical procedures unsafe, it could be argued that abortion is never safe for the baby, it is always fatal. If unborn babies are babies, and babies are people, then one out of every two people going into an abortion clinic does not come out alive. However, even putting that aside, please notice that the Plaintiff wants you to believe two contradictory things. First, that their clinic is safe and their primary concern is for the health and best interests of their patients. Second, that the demonstrations so unnerve women as to make abortions unsafe, risky and dangerous.
The simple question is this—since rescues take place an average of three half days in the entire year, and since they are never on any day but Saturday, why doesn't the clinic simply ask the women to come back two days later? Why would they go ahead with an abortion during a demonstration when they claim that doing so is unsafe? Either it is not unsafe, or it is unsafe but the clinic performs the abortion anyway. The latter might be explained by the doctor you heard testify, who makes $300,000 a year from doing abortions regardless of how safe they are.
Either the demonstrations do not put women at risk—and therefore this claim against the rescuers is false—or the clinic is deliberately putting women at risk by following through with their abortions—in which case their claim to act in the best interests of their patients is false. The plaintiffs cannot have it both ways. They may not be telling the truth in either case, but they simply cannot be telling the truth in both cases.
Freedom of Expression, Sidewalk Counseling, Punishment
The plaintiffs have said they do not oppose sidewalk counseling and other forms of freedom of speech. Yet the permanent injunction they have requested, like the temporary injunction they have had for the last year and a half, does not merely ban rescuing or blocking the doors. It specifically prohibits sidewalk counseling, talking, walking, praying, or any communicative or noncommunicative activity on the sidewalks outside the clinic.
These sidewalks are public property, maintained by all our tax dollars, yet the clinic wants to go on enjoying their special privilege the rest of us do not have at our businesses or even our homes. That privilege is to decide for themselves who can and cannot talk to people and express their views outside their doors. So much for freedom of speech and expression.
The fact that they are not just asking for an injunction against rescuing, but are trying to prohibit any normally legal activity on much of these public sidewalks, makes clear that they simply want to maintain business as usual without having to live with the free speech activities guaranteed by our Constitution and its amendments.
The Plaintiff has made much of the fact that these defendants cannot say with absolute certainty that they will obey a permanent injunction at the abortion clinic. Once again, you must be careful not to punish the defendants for being honest. They do not intend to break it, they just can't say for sure they never will when innocent lives are at stake.
The defendants could sit here and lie and say “yes, I'm absolutely sure I'll never rescue at the clinic again,” thinking it might go easier for them. Then, they could go out and do it after this case is over. But they're too honest to do that.
But the defendants can't say for sure now, because they don't know what the future holds. Should they be punished because of their honest uncertainty? Should they be punished now for possible further acts which neither you nor they know will happen? Or should it be left to the courts to punish them later if and only if they choose to do so later? That way they could be punished for what they've done, not for what they might do. Isn't that the way we function in the United States of America?
What if some do rescue again at this abortion clinic? What if they do violate the injunction by praying or passing out literature in the forbidden zone of the no-longer-public sidewalk? There is a cost for civil disobedience. These defendants aren't asking not to be punished. In fact, even if you think they shouldn't be punished, it's too late for that. They've already been punished by the police and the courts, and they will no doubt be punished again if they rescue again. History shows clearly that there is little danger they won't be punished.
Nuclear protesters, animal rights protestors, environmental protestors, peace protestors, homosexual protestors have all broken the law in this city, and some have done dangerous and destructive acts. But none have been punished for comparable offenses to the extent that these rescuers have.
The question is not whether or not you believe these people should be punished. The question is whether you believe they deserve to be punished above and beyond the pain compliance, fines, court appearances, jail sentences and consequent effects on their personal lives, families, and jobs. Are these punishment enough, or is the plaintiff entitled to heap further punishment on them? Remember, it is the plaintiff who would receive punitive damages if you grant them. Not women or children in need, but the abortion clinic.
Whether or not you award this money to the abortion clinic, abortions will continue, and they will continue to be a lucrative business. But what is at stake for the defendants is garnished wages, and real losses of bank accounts, homes and other possessions. Does the plaintiff really deserve to have these, and do the defendants and their families, in addition to everything else, deserve to have them taken away?
When all is said and done, the defendants believe the most important question is, “how does God judge illegal but peaceful and nonviolent efforts to save an innocent child from death when it is too late for all other means to save the life?” If you believe in God, that question is most important to you also. If you do not believe in God, the most important question you must ask yourself is, “how will history one day judge these people?” And ask yourself “how will history one day judge me as a member of this jury?” Is it possible that the rights of unborn children that the defendants stand for will one day be recognized by all, just as the rights of blacks and women are now recognized? When your grandchildren think about people like this, what will they think? When they think about juries like this, what will they think? They will not simply think about what was legal, they will think about what was right.
After seeing and hearing what you have, it will still come down to what you believe—what each of you as individuals believes. You cannot shirk the voice of your individual heart or your individual conscience. Thank you for carefully evaluating all that you have seen and heard. Thank you for being careful to come to a verdict concerning these people and their actions with which you—and your grandchildren—will be able to live.