Law School Case Brief
McMillan v. City of Jackson - 701 So. 2d 1105 (Miss. 1997)
The defense of necessity has three essential elements: (1) the act charged must have been done to prevent a significant evil; (2) there must have been no adequate alternative; and (3) the harm caused must not have been disproportionate to the harm avoided.
Beverly McMillan participated in an abortion protest at a women's medical clinic. She was charged with trespass on the premises, pursuant to Miss. Code Ann. § 97-17-97 (1994). During her trial, defendant stipulated that her conduct did conform to the elements of trespass, but argued that her actions were justified under the defense of necessity because her training as an obstetrician/gynecologist allegedly allowed her to become aware that the clinic was illegally killing viable preborn children.
Was the defense of necessity applicable to a defendant charged with trespass at a clinic that provided abortion services?
The court affirmed the judgment against McMillan, holding that the necessity defense did not apply to her case because she did not present evidence that she was attempting to prevent a specific and imminent legal harm, as abortions that occurred in the second trimester did not necessarily mean that they were illegal.
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