concurring.
I agree with the majority that the defendants' convictions must be affirmed. It seems possible to me that under certain circumstances the defense of necessity should justify what would otherwise be illegal conduct engaged in to prevent the performance of an abortion. The defense is clearly inapplicable in this case, however, because as the majority notes the defendants' conduct can only be characterized as a general protest against abortions.
The defense of necessity is designed to justify otherwise illegal conduct taken to *1084prevent a specific harm from occurring. See, e. g., W. LaFave & A. Scott, Criminal Law § 50 (1972). Public policy prohibits applying the defense of necessity to exonerate a person of liability for his or her legal conduct engaged in as a form of civil disobedience, no matter how laudable the person's goals may be. Thus, the defense of necessity has been ruled unavailable in other prosecutions for trespass at abortion clinics (Gaetano v. United States, 406 A.2d 1291, 1294 (D.C.App.1979); Minnesota v. Rasmussen, 47 U.S.LW. 2331 (Minn.Mun.1978)) and in prosecutions for trespass and vandalism protesting the Vietnam War (United States v. Berrigan, 283 F.Supp. 336, 338-40 (D.Md.1968); State v. Marley, 509 P.2d 1095 (Hawaii 1973)). The court in United States v. Berrigan aptly expressed this rationale:
No civilized nation can endure where a citizen can select what law he would obey because of his moral or religious belief. It matters not how worthy his motives may be. It is axiomatic that chaos would exist if an individual were permitted to impose his beliefs upon others and invoke justification in a court to excuse his transgression of a duly-enacted law.
283 F.Supp. at 339. A person who chooses to disobey a law because he or she believes it is necessary to do so in pursuit of a moral cause must accept responsibility for the illegality of that conduct. This was particularly well stated by Judge Sobeloff in United States v. Moylan, 417 F.2d 1002, 1008 (4th Cir. 1969):
From the earliest times when man chose to guide his relations with fellow men by allegiance to the rule of law rather than force, he has been faced with the problem how best to deal with the individual in society who through moral conviction concluded that a law with which he was confronted was unjust and therefore must not be followed. Faced with the stark reality of injustice, men of sensitive conscience and great intellect have sometimes found only one morally justified path, and that path led them inevitably into conflict with established authority and its laws. Among philosophers and religionists throughout the ages there has been an incessant stream of discussion as to when, if at all, civil disobedience, whether by passive refusal to obey a law or by its active breach, is morally justified. However, they have been in general agreement that while in restricted circumstances a morally motivated act contrary to law may be ethically justified, the action must be non-violent and the actor must accept the penalty for his action. In other words, it is commonly conceded that the exercise of a moral judgment based upon individual standards does not carry with it legal justification or immunity from punishment for breach of the law.
Adherents and practitioners of civil disobedience who have reached this conclusion are too many to list. One need only allude to Socrates, Sir Thomas More, Henry David Thoreau, Ghandi, and Martin Luther King, Jr. whose actions supported this proposition. The Lutheran and Episcopal Churches in America have endorsed civil disobedience, but only if action is non-violent and the actor is willing to accept the consequences of his action.
Id. at 1008 & n. 21 (footnote integrated into text) (footnote omitted).
I empathize with the defendants' sorrow over the loss of human lives caused by abortions. I believe the United States Supreme Court burdened this country with a tragic decision when it held in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that the word "person," as used in the fourteenth amendment, does not include the unborn, id. at 158, 93 S.Ct. at 729, 35 L.Ed.2d at 180, and that states cannot "override the rights of the pregnant woman" by "adopting one theory of life." Id. at 162, 93 S.Ct. at 731, 85 L.Ed.2d at 182. I do not agree with the Court's conclusion that a state's interest in potential life does not become "compelling" until the fetus has *1085attained viability. It stated its explanation for this conclusion as follows:
With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.
410 U.S. at 163, 93 S.Ct. 731-32, 35 L.Ed.2d at 183. As Professor Tribe indicates, "One reads the Court's explanation several times before becoming convinced that nothing has inadvertently been omitted." Tribe, Forward to The Supreme Court 1972 Term, 87 Harv.L.Rev. 1, 4 (1978) (footnote omitted). I agree with Professor Tribe when he states, "Clearly, this [analysis] mistakes 'a definition for a syllogism, and offers no reason at all for what the Court has held." Id., quoting Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 924 (1973) (footnotes omitted).
In effect, the Supreme Court held that because there is no consensus as to when human life begins it must act as though it were proven that human life does not begin until birth so as to preserve to women the right to make their own decision whether an abortion takes a human life or not. It would make more sense to me if, in the face of uncertainty, any error made were made in favor of the fetus, which many believe to be human life.
The development of a zygote into a human child is a continual, progressive development. No one suggests that the born child is not a human being. It seems undeniable, however, that human life begins before birth. As Professor Curran states:
[The fetus one day before birth and the child one day after birth are not that significantly or qualitatively different in any respect. Even outside the womb the newborn child is not independent but remains greatly dependent on the mother and others. Birth in fact does not really tell much about the individual as such but only where the individual is-either outside the womb or still inside the womb.
C. Curran, Transition and Tradition in Moral Theology 209 (1979). Similarly, viability does not mark the beginning of the truly human being.
[Vjiability again indicates more about where the fetus can live than what it is. The fetus immediately before viability is not that qualitatively different from the viable fetus. In addition viability is a very inexact criterion because it is intimately connected with medical and scientific advances. In the future it might very well be possible for the fetus to live in an artificial womb or even with an artificial placenta from a very early stage in fetal development.
Id. (footnote omitted). I join with those persons who believe that truly human life begins sometime between the second and third week after conception.
Biological information heavily influences this judgment, but the ultimate reason rests on the recognition that individuality, which is a most fundamental characteristic of the truly human being, is not achieved before this time, up to which twinning and recombination can occur. Before this time there is no organizer which directs the differentiation of the pluripotential cells, and without this organizer hominization cannot occur. Also this theory contends that the large number (perhaps as many as 50 percent) of fertilized ova which are spontaneously aborted without the mother being aware of having conceived are not truly human beings.
Id. at 212.
I therefore believe that abortions performed after the second or third week of pregnancy cause the taking of a human life, which should be prohibited under most circumstances. Furthermore, I believe that if a majority of people within a state reach the conclusion that a human life entitled to protection exists some time before birth the people should be able, through their legislature, to enact statutes in accordance with *1086their "theory of life," as the Court phrased it in Roe v. Wade, 410 U.S. at 162, 93 S.Ct. at 731, 35 L.Ed.2d at 182. Nonetheless, persons who share these convictions must work through the political process to achieve their goals or accept the consequences imposed by our legal system for attempting to achieve their goals by unlawful action.1
. I would not categorically reject the argument that the defense of necessity may be invoked to justify conduct intended to prevent a particular abortion form being performed, as opposed to conduct intended to protest abortions in general. For example, if a husband were to trespass at a clinic to prevent his wife from obtaining an abortion after the third week of her pregnancy, I believe the harm he would be seeking to prevent would be greater than the harm he would cause. If there were no other adequate means by which he could prevent the abortion, I think the defense of necessity could justify his conduct.
The majority has suggested several reasons why, under even these circumstances, the defense would be unavailable (e. g., the defense is unavailable if the harm being sought to be prevented emanates from lawful human conduct). However, it seems inappropriate to give these issues extensive consideration, inasmuch as it would not affect the outcome of this case. I believe it is preferable to address these issues when and if a case that involves this particular factual situation comes before this court.