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Calling abortion 'legal execution' may open new Roe challenge

By FRANCES ANN BURNS

TRENTON, N.J. -- A judge's ruling that abortion is 'legal execution' of a human being opens the way for another challenge to the Roe vs. Wade decision, an anti-abortion lawyer said Tuesday.

And a law professor said that the case -- one of the few in which anti-abortion activists have been allowed to present evidence on when life begins -- illustrates the difficulty courts have with issues where public opinion is inflamed and those who disagree with a law are willing to defy it.

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But other lawyers believe that Judge Michael Noonan's opinion does not set any new precedent. Deborah Ellis, legal director of the New Jersey chapter of the American Civil Liberties Union, said higher courts will uphold Noonan's ruling that 15 anti-abortion activists are guilty of trespassing, ignoring his finding that a fetus is a person.

Noonan, in a hearing Monday in Morristown Municipal Court, imposed a fine of $30 on Alex Loce of New York, who was trying to keep a former girlfriend from aborting his child at a Morristown doctor's office last September. The other defendants were fined $280 each for their part in the protest.

In an unusual opinion, Noonan said that the '8-week-old fetus in this case was a living human being that was legally executed pursuant to the U.S. Supreme Court.'

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Richard Traynor, lawyer for one of Loce's companions, said the case was the first since 1973 Supreme Court decision in Roe v. Wade in which a judge has allowed evidence on whether a fetus is a person. Traynor believes the ruling opens an avenue of appeal that has not been available to anti-abortionists.

'What he said was that this was a human being by all the proofs in the case and that this human being was terminated by abortion,' Traynor said.

Robert Burt, a Yale Law School professor who specializes in family and constitutional law, said that most judges have refused to allow Operation Rescue members and others arrested during clinic protests to present testimony or evidence on when life begins.

Loce and his fellow demonstrators used the 'necessity defense' -- that they broke the law in order to do what was morally right. At a hearing April 14, Noonan allowed their lawyers to put on expert witnesses who testified that life begins at conception.

Julie Shapiro, a Philadelphia lawyer who represents an abortion clinic locked in a long legal battle with anti-abortionists, has argued both sides of the necessity defense. As lawyer for the Northeast Women's Center, she has successfully kept evidence on the morality of abortion out of a civil suit over trespassing, while as lawyer for peace groups, she has argued that defendants should be able to give evidence on the morality of their actions.

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'I actually like the idea that you can defend that way,' she said. 'From a structural point of view, the court systems cannot tolerate that (defense) because it gives juries too much power.'

The necessity defense was briefly legal in Pennsylvania, Shapiro said, before a lower court decision was reversed by the state Supreme Court. She said she got charges dropped against one group of anti- nuclear protestors because prosecutors were not prepared to handle a trial that would include months of testimony on the morality of nuclear weapons.

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