## Facts

- Roland Markum and other anti-abortion demonstrators entered and occupied a Philadelphia abortion clinic during an organized protest.
- The group placed stickers on clinic walls and doors and damaged medical equipment.
- The demonstrators refused to leave when directed and were removed by police.
- The defendants asserted their conduct was necessary to prevent abortions, which they characterized as a greater harm than trespass or property damage.

## Issues

1. Whether defendants charged with defiant trespass and related offenses for entering, remaining in, and damaging an abortion clinic could present a statutory justification (necessity) defense under Pennsylvania law to prevent abortions.
2. Whether the trial court properly barred the justification defense as legally unavailable where the alleged harm was the performance of abortions on third parties and lawful alternatives existed.

## Decision

- The Superior Court of Pennsylvania affirmed the judgments of sentence.
- The court held the defendants were not entitled to assert the statutory justification (necessity) defense to excuse trespass and property damage committed to stop abortions.
- A concurring judge agreed with affirmance, emphasizing the availability of lawful alternatives as independently defeating justification.
- A dissenting judge would have allowed the defense to be presented, arguing the record did not establish whether the abortions at issue were lawful under then-controlling constitutional standards.

## Legal Principles

- Statutory justification requires, among other elements, that the harm sought to be avoided be greater than the harm targeted by the criminal law and that the actor lack reasonable lawful alternatives.
- Justification does not permit private citizens to use criminal conduct to obstruct activity that the law treats as lawful; lawful abortions could not be treated as the “greater harm” for necessity purposes.
- Necessity-type defenses are limited to circumstances involving a sufficiently immediate threat and do not extend to generalized moral opposition to lawful conduct affecting third parties.
- The presence of reasonable legal alternatives (e.g., lawful protest, advocacy, political action) forecloses a justification defense.

## Conclusion

The court upheld convictions arising from an abortion-clinic protest and ruled that Pennsylvania’s justification (necessity) defense could not be used to excuse trespass and property damage undertaken to prevent abortions that the law recognized as lawful, particularly where lawful alternatives to criminal action were available.


Commonwealth v. Markum, 541 A.2d 347 (Pa. Super. Ct. 1988)