People v. Archer

143 Misc. 2d 390, 537 N.Y.S.2d 726 (City Ct. 1988)



There can be no State regulation of abortion prior to the end of the first trimester, for any reason whatsoever.


In a hospital located in New York, a director of security notified the police of a disturbance happening in the hospital. When the police came, in response to his summons, they found that 42 individuals entered a hospital and conducted a nonviolent "sit-in" which blocked access to an abortion clinic and that no abortions were in progress. Over a period lasting about five hours, the police tried to evacuate these protestors with persuasion, admonition, threats and warnings. These measures having failed, the police arrested all 42 individuals. The hospital and the police filed cases against the 42 defendants for criminal trespass and resisting arrest. During trial, the State made a motion to preclude the use of the "necessity defense” under N.Y. Penal Law § 35.05(2) by defendant protesters. N.Y. Penal Law § 35.05(2) limited the defense of justification generally to cases where the otherwise admittedly criminal conduct of a defendant was necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and where the injury sought to be avoided clearly outweighed the injury the criminal statutes in question were calculated to prevent.


Should the defendants be allowed to present evidence under the necessity defense?




The Court concluded that a jury was free to decide, under § 35.05, that many abortions are immoral injuries to be avoided which outweighed the desirability of avoiding injuries such as trespassing and resisting arrest. However, in view of the holding in Roe v. Wade, § 35.05 could not be interpreted to allow a jury to find that a first trimester abortion was such an "injury to be avoided." Consequently, the court held that defendants could present and argue the defense of necessity so long as the jury finds that the hospital was about to perform other than first trimester abortions.

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