specially concurring.
The majority holds that defendants were not entitled to present the “choice of evils” defense, ORS 161.200(1), 1 because abortions are legal in Oregon and it would therefore be “inconsistent * * * with some other provision of law” to permit the defense in this case. I agree with the majority’s result, but not with its analysis. For that reason, I write separately.
The majority misunderstands the purpose of the introductory phrase in ORS 161.200(1). When read in full and in context, its purpose is simply to ensure that choice of evils will not override other, more specific justification defenses and will not be available in situations where the legislature has decided not to allow a justification defense at all.
ORS 161.200 is derived from Model Penal Code § *2753.02, by way of New York Penal Law § 35.05(2). See Commentary, Proposed Oregon Criminal Code, § 20. Section 3.02(1) of the Model Penal Code provides its version of the defense if
“(b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and
“(c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.”
Section 35.05(2) of the New York Penal Law provides that the defense is available “[ujnless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force[.]”
ORS 161.200(1), like New York Penal Law § 35.05(2), places the exceptions to the choice of evils defense in the introduction to the statute. However, the scope of those exceptions in Oregon is closer to Model Penal Code § 3.02(1) than to New York’s statute. The Oregon law, as relevant, provides that choice of evils is a defense “[ujnless inconsistent with other provisions of chapter 743, Oregon Laws 1971, defining justifiable use of physical force, or with some other provision of law[.]”2 The first portion reflects Model Penal Code § 3.02(1) (b); the second portion, on which the majority relies, reflects § 3.02(1)(c).
Under the first portion, choice of evils is available unless some other provision of the Criminal Code concerning the justifiable use of physical force supersedes it. Examples of such other defenses include those that immediately follow ORS 161.200. See ORS 161.205 to ORS 161.265. Under the second portion, the Model Penal Code would exclude the defense if the legislature plainly intended to do so; Oregon excludes it if to allow it would be inconsistent with some other provision of law. Although the provisions differ in some respects, both require that the legislature intend to foreclose the use of the defense. Roe v. Wade, 410 US 113, 93 S Ct 705, 35 L Ed 2d 147 (1973), of course, does not express Oregon intent, legislative or otherwise. Although the repeal óf the *276laws regulating abortions might express the legislature’s intent about abortions, that action does not suggest that the legislature meant to affect the availability of the choice of evils defense. No other provision of law is inconsistent with ORS 161.200 in the way that ORS 161.200(1) contemplates.
I would, then, turn to the other requirements of ORS 161.200(1). Defendants concede that they blocked the doors to the clinic and that their acts constituted criminal trespass. They argue that they violated the criminal trespass law in order to prevent the imminent “public or private injury” of women entering and having abortions. The evidence at the pretrial hearing showed that 19 abortions were scheduled that day and that the clinic performs about 450 each month. There was also evidence to support defendants’ belief that each abortion involved the taking of a human life. If an abortion can be a “public or private injury,” defendants presented evidence from which a jury could find that they had met the requirements of ORS 161.200(1). I would hold as a matter of law, however, that an abortion is not such an injury.
There is no evidence that the women who were to have abortions on the day of defendants’ trespass were doing so other than voluntarily or that those who were to perform the abortions were compelled to participate.3 No law prohibited the performance of the contemplated abortions, and no Oregon case has held that a properly performed abortion constitutes a tort.4
A person may legally do anything that is not prohibited; no legislative or judicial authorization is necessary.5 Therefore, those involved had a right to seek and to perform the abortions that, according to defendants, were public or *277private injuries.6 Accepting defendants’ argument would require us to hold that the alleged immorality of a legal, nontortious act can be a “public or private injury.” Nothing in ORS 161.200(1) supports that conclusion.7 An action is not an injury within the meaning of ORS 161.200(1) simply because the defendant believes it to be wrong or believes that it ought to be illegal. In arguing otherwise, defendants in effect ask that they be permitted to act on their moral views by violating an otherwise valid law in order to stop another person from doing what is not legally wrongful.8 The only condition that defendants would place on their power to interfere with the *278legally innocent activities of others is that they must be able to persuade a jury to accept their moral views rather than those of the person whose legal rights they have violated.
If defendants’ view is correct, determining the legality of controversial conduct will not be done by the community through the legislative process or by the courts through the application of legal principles. Rather, it will become a subject for after-the-fact determinations by juries, based on jurors’ particular moral views.9 The potential effect on those who engage in unpopular but legal activities is obvious. The legislature did not intend so major a change in the location of lawmaking power when it adopted the choice of evils defense. It permitted the jury to balance the injury of violating a law against the benefit of preventing a different injury. It did not intend to permit juries to determine that performing an act that is neither unlawful nor tortious is, nevertheless, an injury by reason of its moral or political content. Defendants may be morally right or politically effective or both, but they do not satisfy the requirements for the choice of evils defense.10
Even if a legal abortion could be an injury under ORS 161.200(1), ORS 161.200(2) would foreclose the defense in this case. That subsection requires that the justifiability of conduct under ORS 161.200(1) not rest on considerations of the morality of the violated statute, “either in its general application or with respect to its application to a particular class of cases arising thereunder.” See n 8, supra. Defendants base their choice of evils defense on the assertion that the criminal trespass statutes should not apply to their protest, on moral grounds, against abortion. That is exactly the kind of claim that ORS 161.200(2) forecloses.
Accordingly, I concur in the result.
ORS 161.200(1) provides:
“(1) Unless inconsistent with other provisions of chapter 743, Oregon Laws 1971, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when:
“(a) That conduct is necessary as an emergency measure to avoid an imminent public or private injury; and ■
“(b) The threatened injury is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.”
Because the New York law excludes the choice of evils defense only if a different justification defense supersedes it, and thus provides a more limited exception than does ORS 161.200(1), the Model Penal Code is closer to this portion of the statute and therefore more helpful in understanding it.
See ORS 435.485 (physicians and hospital employes and medical staff may elect not to participate in the termination of pregnancies).
The holdings of Mallison v. Pomeroy, 205 Or 690, 291 P2d 225 (1955), and Libbee v. Permanente Clinic, 268 Or 258, 518 P2d 636, 520 P2d 361 (1974), providing causes of action for injury to or the death of a viable fetus, have not been extended to voluntary abortions.
Because Oregon does not prohibit abortions, see n 6, infra, the conclusion that those involved had a right to seek and perform the contemplated abortions does not depend on the Supreme Court’s holding in Roe v. Wade, supra. If Oregon law did prohibit abortions, Roe and its progeny would be relevant to the extent that they would render such a law invalid.
Oregon law does not simply fail to prohibit abortions; it specifically provides for them. In 1983, the legislature repealed all restrictions on decisions to seek or to perform abortions. Or Laws 1983, ch 470, § 1. In addition, no hospital operated by the state or a political subdivision may adopt a policy of excluding or denying admission to a person seeking termination of a pregnancy. ORS 435.475(3). The Health Division by rule has established criteria for licensing termination of pregnancy hospitals. OAR 333-73-200 to OAR 333-73-255. Defendants do not assert that the clinic was unlicensed or otherwise failed to comply with any applicable law. Thus, the actions that defendants sought to prevent were actions for which state law expressly provides.
Judge Rossman gives examples of conduct that is neither tortious nor illegal but that, in his view, constitutes a “public or private injury” under the statute. In his example of the policeman, the officer may well act tortiously if the medical student tells him that he will cause further damage by moving the injured person. Moreover, the harm of the policeman’s conduct does not flow from its moral or political content and is not an inherent quality of all similar conduct, as in the present case. See ORS 161.200(2). The attempt to prevent an execution that is legal in every way, by engaging in criminal trespass and assault, does not give rise to the choice of evils defense for the reasons suggested in this concurrence, because the execution is not a “public or private injury” under ORS 161.200(1), even if the condemned person is in fact innocent.
ORS 161.200(2) provides:
“The necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of the [violated] statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.”
The commentary notes that, under that subsection, there is no exemption from the criminal trespass statutes for those who invade public offices to protest United States foreign policy. Other commentators suggest that the choice of evils defense
“is generically inappropriate to justify acts of civil disobedience, since the defendant’s conduct, rather than attempting to directly avoid [sic] specific harm, attempts to transcend accepted democratic processes and seeks to change a political decision of society which may only secondarily avoid a particular harm or evil.” Tiffany and Anderson, “Legislating the Necessity Defense in Criminal Law,” 52 Denver LJ 839,844 (1975).
Although defendants’ acts in this case were designed to prevent harm that they believed was occurring, they attempted to prevent that harm by transcending the political decisions of society. ORS 161.200(2) will not permit them to do that; it thus supports my view of what constitutes a “public or private injury” under ORS 161.200(l)(a).
Of course, juries have always had the power to acquit a person, despite the requirements of the law, if the jury believes that the person should not be punished criminally. That power of acquittal, however, is different from the creation of a legal defense that calls on the jury to convict or acquit the defendant on the basis of its opinion of the rightness or wrongness of the conduct of the defendant’s victim, when that conduct is neither illegal nor tortious.
My analysis does not depend on the content of the defendants’ moral choice. The result would be the same if defendants had violated the criminal trespass law in an attempt to persuade an unwilling physician to perform an abortion for a woman whose life was in danger because of her pregnancy. See ORS 435.485.