First pharmacists, now judges

Adam Liptak of the New York Times reports on judges opting out of abortion cases.

Many states allow minors to obtain abortions without parental consent by petitioning judges. Some judges refuse to hear these pleas on "moral" grounds.

Judges, however, are starting to opt out. Other judges of the Shelby Circuit Court have recused themselves like Judge McCarroll, and now, according to one judge, only four of the nine judges on the court hear such abortion applications.

Judges in Alabama and Pennsylvania have also said they will not take such cases.

The actions, similar in some ways to pharmacists' refusal to dispense drugs related to contraception or abortion on moral grounds, have set off a debate about the responsibilities of judges and the consequences of such recusals, including political ones when judges are elected rather than appointed.

I might have more to say on this later.

Comments

[IF]

Sadly, the filing requirements in this area are generally (and, deliberately?) convoluted. The last time I checked the data, however, judicial bypass is granted as a matter of course. It is supposed that any teen mature enough to navigate the system is mature enough to make informed medical decisions.

The real kick in the teeth here is that the self-recused judges are not merely begging off the enforcement of politically created rights of juveniles but are refusing to be party to the vesting of a juvenile's constitutional rights.

The pharmacist, arguably, has a politically created obligation based on the monopolistic grant of exclusivity in the distribution of drugs. The exclusive obligation of the judge is the enforcement of the law, constitutional or political. Recusal is just ridiculous. Why not let all the judges who politically favor the medicinal use of marijuana to recuse themselves from all drug cases?

[Greg]

I can't say I have too big a problem with this. If the people most likely to rule in an anti-choice way are self-selecting out of the pool, isn't that a good thing? Isn't it better for them to admit that obeying the law is incompatible with their moral beliefs and step aside, than for them to try and distort the law until it matches?

[Lindsay Beyerstein]

Well said, IF:

The real kick in the teeth here is that the self-recused judges are not merely begging off the enforcement of politically created rights of juveniles but are refusing to be party to the vesting of a juvenile's constitutional rights.

Judges are supposed to be disinterested interpreters of the law. They can't just opt out when they don't like the law. That's judicial activism by passive resistance.

[Bob Koepp]

I think these judges who recuse themselves are not claiming that "obeying the law is incompatible with their moral beliefs," but rather, that their moral beliefs will impair their ability to dispense justice. If they do believe the latter, then they most definitely ought to recuse themselves -- in fact, they have a duty in law to do so. Of course, they ought also to be asking whether it would be appropriate to resign their judgeships, since they apparently are unable to maintain the objectivity required by their positions.

[mds]

If the people most likely to rule in an anti-choice way are self-selecting out of the pool, isn't that a good thing?

Well, let's see: when we try to raise the alarm about parental notification laws, we're pooh-pooh'ed for being unreasonable. After all, if (for example) parental sexual abuse is involved, the victims can petition a judge for a waiver, right? (Certain members of the "Libertarian" contingent commented ad nauseum about waivers when the restrictions on out-of-state abortions for minors were a hot topic.) Now we find that the victims might not be able to get a judge to even hear them. Or did I miss the part where judges promise to recuse themselves on moral grounds only if there is another judge available? This doesn't underscore a problem with recusal, as judges cannot be law robots; it underscores what the true ultimate goal of those pushing the notification laws is. And that's the practical destruction of choice.

[Scott Lemieux]

In this case, at least it's better than them just denying the injunctions. But more importantly, it's Exhibit Y for the obvious truth that parental notifcation laws are awful,

[blah]

Funny, you just know he's pro capital punishment.

[teh l4m3]

At any rate, Armando at DKos is right on this count: Roberts should have to answer questions about this sort of thing when the confirmation hearings begin.

[SqueakyRat]

Remove them all, pharmacists, judges, all of them. Summon the tumbrils. Get a gun. Join with your neighbors for a guillotine party. But first get a gun.

[Joel]

I think I'd rather have them recuse themselves than rule against a girl who might actually need an abortion.

If only Scalia would follow their example and stay out of cases which his prejudices affect. (I bet he is crying tonight because he was not nominated to be chief justice.)

[mds]

I think I'd rather have them recuse themselves than rule against a girl who might actually need an abortion.

Yes, yes, wonderful...Again, what if all available judges "recuse" themselves? As the original article notes, they're already down to four of the nine Shelby County Circuit Court judges who will even hear such appeals. What happens if and when all of them refuse? I guess teenagers pregnant by their own fathers need to hit the road, looking for a county where a judge will do his fucking job. But no, this way, judges can preach their extralegal "values" from the bench (as this recusing judge naturally took the opportunity to do), without having to actually put on the record the reasons why some of these minors are seeking abortions. Pompous self-righteousness combined with blanket dishonesty---sounds like the anti-choice movement, all right.

[Bill the cat]

Obstruction of justice on the part of judges?

What's next, I wonder...

[m]

Such behavior is not unknown to the judicial system.

When stricter sentencing requirements were put into place several years ago, there were reports of a group of federal judges who refused to hear drug cases on moral grounds. They felt that the punishments for drug crimes were outrageous and useless.

[Eleanor]

Feeling very glad that in the UK the courts are kept out of it (I'm actually rather shocked to discover what the US process is). A minor needing an abortion here can go ahead without parental consent as long as a doctor believes she's capable of giving informed consent. There are periodic calls for this to be changed to give parents the power of decision, since (so the argument goes) parents have their daughters' best interests at heart -- rather missing the point that a small minority of parents do not, and it's the daughters of that minority who need the protection of being able to seek abortion, if necessary, without being exposed to danger by their parents finding out.

[Bob Koepp]

Although I'm not a fan of parental notification laws, much less parental consent requirements (where such exist...) I do understand that not everybody who favors such laws is "anti-choice." Some parents think they should know if their 12 or 13 year old daughters are sexually active, or pregnant, or undergoing abortions. It's a knee-jerk response that assumes such parents are opposed to a woman's right to choose.

Further, several posts in this discussion equate recusal with refusal to act in accordance with the law. That's ill-informed, to say the least. A judge who believes s/he cannot act impartially is duty bound to recuse her/himself. That's the law.

[Eleanor]

Bob, not sure if you're replying specifically to me there, but just to clarify if necessary: that "knee-jerk response" is not what I'm saying. The problem as I see it isn't to do with people who favor such laws being "anti-choice", but that in the few cases where it comes down to a *direct* decision between protecting a young girl's health -- and possibly her life -- and protecting parents' right to know what their daughters are up to, the former has to come first. Not that those two goals need be mutually exclusive, and of course for the huge majority of families they aren't.

[Bob Koepp]

Eleanor - No, I wasn't directing my remarks to you. If I had, I would simply have noted that there is no single "process" for dealing with these situations in the US -- it depends on what jurisdiction you're in as this is a matter of state rather than federal law.

[mds]

I do understand that not everybody who favors such laws is "anti-choice."

Of course not. It's just coincidence that anti-choice groups push so vigorously for these laws, which restrict reproductive choice. But then, that's what the judicial waiver is for, to protect choice in desperate circumstances. At least, until judges refuse to hear pleas for waivers. And lo, here we are.

Some parents think they should know if their 12 or 13 year old daughters are sexually active, or pregnant, or undergoing abortions.

And some parents think they should know all this so they can physically or emotionally abuse their 12 or 13 year old daughters. And some parents already know in a very personal way that their 12 or 13 year old daughters are sexually active. But then, that's what the judicial waiver is for, to protect choice in desperate circumstances. At least, until judges refuse to hear pleas for waivers.

Further, several posts in this discussion equate recusal with refusal to act in accordance with the law. That's ill-informed, to say the least. A judge who believes s/he cannot act impartially is duty bound to recuse her/himself. That's the law.

Well, except when it isn't. Perhaps Professor Lemieux can provide some of the legal details on recusal, and regulation of judicial impartiality. Otherwise, I'd be likely to rant about Judge Roberts being offered a promotion by the Bush administration while ruling on a case involving the Bush administration. Or the Ohio Supreme Court justice ruling on claims about the election that elected him. Or Scalia and ducks. And all of that would be counterproductive.

Oh, and from the linked article:

Judge McCarroll's decision prompted 12 experts on judicial ethics to write to the Tennessee Supreme Court in late August. The experts called his action lawless and said they feared that his approach could spread around the nation and to subjects like the death penalty, medical marijuana, flag burning and even divorce.

"Unwillingness to follow the law," the letter said, "is not a legitimate ground for recusal."

I guess the judicial ethics experts are ill-informed, too.

And now, yet again, what happens when all of the relevant judges recuse themselves, with arguments based oh-so-solidly in the law such as "Taking the life of an innocent human being is contrary to the moral order..."? If enough judges willfully refuse to even hear these cases, while making self-righteous public statements about them, how is that different from ruling in a anti-choice manner?

[Eleanor]

Thanks, Bob. I'd inferred from reading "Many states allow minors to obtain abortions without parental consent by petitioning judges" that in general abortion can't be obtained without *either* parental consent *or* a judge's approval - was I jumping to conclusions there? (I know, I ought to go away and Google this for myself really.)

[Bob Koepp]

mds -
One aspect of this problem that has arisen within our judicial system concerns the fact that reasonable people can question whether some of the cases in question actually do represent "desperate circumstances."
And while the sorts of abusive situations to which you allude do, indeed, constitute desperate circumstances, they provide abundant rationale to take the offending parties into custody, and not worry about whether they know their abused daughters are seeking abortions. (and aren't abortions in cases of rape and incest usually "relatively" uncontroversial?)
And if Roberts, or the Ohio Justice, or Scalia, or whomever has allowed their personal beliefs and interests to color their judgment in cases where they should have recused themselves, well, then they should have recused themselves.
And if there's _any_ circumstance where a judge should recuse her/himslef, it's when s/he is unwilling to follow the law (unless, of course, the intent is to initiate review of the law in question). Of course this might well constitute "legitimate grounds" to resign one's judgeship, as I noted earlier.
BTW, I don't think there's ever been an "expert" in substantive ethics, just lots of pretenders.

[Quintana]

If the good Judge is truly opposed to abortion, then it seems incumbent upon him to hear these cases and deny the requests for abortions. That is all there is to it. If one were to assume that an abortion basically amounts to murder of an innocent human, then recusing oneself means that the case will probably be referred to a judge who will simply grant the judicial bypass request. The greater sin, in that scenarios, is to be complicit, in some way, to murder. It is an accepted axiom of Western thought that an "unjust law is no law" dating back at least to the "Angelic Doctor," St. Thomas Aquinas. Hence, there is no requirement to follow such "laws" which impose an immoral duty on judges (or pharmacists, for that matter), as they are in fact no law at all.

If individuals who believe that abortion is murder were to recuse themselves from the judiciary, then you end up with a judiciary that concocts decisions such as Roe v. Wade out of thin air. There would then be a moral vacuum in the judiciary, which is evidently the case at the moment. Hence, persons who think rightly on these matters need to get themselves into the judiciary as soon as possible. It is evident that amoral or immoral judges have made a concerted effort to join the judiciary, as the majority of judges seem to be out of step with the moral views of the majority of Americans.

If the fact that abortion is wrong is a bitter pill to swallow, then insert slavery for abortion. Slavery, like abortion, is a great moral evil, there can be no question about it. Ask yourself what kind of judges do you want ruling our country (for they are our rulers, make no mistake about it). Do you want judges who know that slavery is wrong, or judges who refuse to consider whether slavery is wrong, and would only analyze slavery under the positive law in existence at the time? Do we want judges who believe that butchering, chopping up, salting to death, or crushing the brains of unborn infants is permissible under some implied penumbras to the Constitution, or do we want judges who know that such acts are simply not to be tolerated?