Judges Who Opt Out on Abortion Cases: Moral Position or Not?

Brian Tamanaha

A number of states require minors to obtain parental permission before undergoing an abortion; as an alternative, the minors may petition a judge to allow them to make the decision themselves. A recent news report indicated that a growing number of judges recuse themselves from such cases owing to their moral opposition to abortion. Four out of nine judges in Tennessee refuse to hear these cases. Judges in Alabama and Pennsylvania apparently have begun to do the same.

Out of fear that this practice will spread, a group of law professors wrote to the Tennessee Supreme Court to challenge the appropriateness of such recusals.

Prof. Susan P. Koniak, who teaches legal ethics at Boston University and signed the letter to the Tennessee Supreme Court, said judges were free to express their moral disagreement with a law but were not free to decline to enforce it.

"I expect them to bring their moral sense to a case," Professor Koniak said in an interview. "But the law comes first."

If this practice spreads, the result will be to restrict the availability of abortions for minors--a prospect not lost on abortion opponents. Minors will have to forum shop for willing judges, and some may have to travel significant distances to find a judge willing hear the case.

Judge McCarroll, one of the judges who recused himself owing to his moral opposition to abortion, indicated that his course of action was required by the rules of judicial ethics:

"A judge should recuse himself or herself," he wrote, "if there is any doubt about the judge's ability to preside impartially or if the judge's impartiality can reasonably be questioned."

One judge who continues to hear these cases offered his reasons and concerns:

Judge D'Army Bailey, another judge on the circuit court here, said in an interview that he had been hearing more than his share of minors' applications since Judge McCarroll and other judges began recusing themselves. Judge Bailey said he had considered "three or four" applications since June and had granted all of them. The proceedings are secret, to protect the minors' privacy.

"I can see good reasons why a teenager would not want to be saddled at that early age with having and raising a child," Judge Bailey said. "It can create a blueprint for disaster for both the mother and child."

He said he put aside his personal views in hearing the applications.

"I didn't swear to uphold all of the laws of Tennessee except for X, Y and Z," Judge Bailey said. "You're sworn to uphold the law whether you agree with it or not."

He said he worried that the varying approaches of the judges at his court could have political consequences.

"I hope that how I handle these questions of allowing these young women to get abortions does not lead to my defeat in the next election," in 2006, he said. "If it does, so be it. I can't keep a job constantly fearing that I'm going to lose it."

Judge Bailey's final comment is telling. In the past decade, the formerly sleepy state judicial elections--for initial appointment or retention--have become expensive, nasty affairs. Millions of dollars and significant material support are targeted by outside interest groups--the US Chamber of Commerce, etc.--at judges they wish to remove. Since the public often lacks information about the judges, and judges must be restrained in their responses, these attacks can be very effective. Furthermore, because judicial elections typically have a lower voter turnout, a highly committed block of voters who show up to vote for or against a judge can turn the outcome.

So what about the judges who recuse themselves? They are in a tough spot, and it would seem difficult to condemn them for being true to their moral opposition to abortion. But it's more complicated than that.

Four basic alternatives are open to the judges: 1) hear the cases and strive to rule in an unbiased fashion; 2) recuse themselves; 3) hear the cases and (consistent with their moral opposition to abortion) deny every request by minors to be allowed decide for themselves; or 4) resign from the bench.

Judge Bailey is taking the first alternative. Judges regularly apply laws they have personal objections to--it comes with the job. It's not easy, but the best judges are able to do it.

The judicial conscientious objectors are taking the second alternative because their impartiality (in fact or appearance) would be in question. But upon closer inspection it appears that the second option is the least commendable option from a moral standpoint as well as a legal standpoint.

If these judges were remaining true to their opposition to abortion--if they acted with the courage of their convictions--it would seem that the third option is the proper course: hear the cases and deny all applications. This would directly prevent abortions (at least for those minors who do not thereafter go to their parents for permission). Of course, some truly desperate minors who cannot confide in their parents might seek high risk (dangerous) abortions from unlicensed practioners who will ignore the consent requirements. But by taking the third option in many cases the judge will have effectively prevented abortions. Judges against abortion can be even more effective in preventing them if they delay purposefully in issuing their denials long enough to make it difficult for the minor to seek out other alternatives. This third option is underhanded and repulsive, to be sure, but it would prevent abortions--so the higher moral end justifies the means.

When the judges simply recuse themselves, in contrast, another judge will hear the case and may grant the request, allowing the abortions to occur. The judges might respond that if all other judges conform to their practice of recusal, then all future abortions in these situations would be halted, but that is a speculative long term outcome.

The point is that, from the standpoint of their opposition to abortion, judges who recuse themselves are not preventing any. What they are doing is keeping their hands clean while making someone else, a fellow judge, accept responsibility for deciding the case. After all, no judge wants to hear these cases, all of which have an unavoidably tragic element--these minors are the most vulnerable people in society in the most difficult situation imaginable. Adding to the burden they impose on other judges, the judges who recuse themselves expose their fellow judges to reprisal--to an increased risk of losing their judicial position in the next election--for stepping up to do the job the conscientious objector judge was unwilling to do.

The recusal option, when viewed in this way, seems neither consistent with their moral opposition to abortion nor with their institutional obligation to their colleagues, nor with their duty to apply the law. Moreover, if judges begin to recuse themselves partly out of opposition to abortion and partly out of fear of the possible reprisal at the next election (such mixed motives would be normal), the moral standing of recusal becomes shakier.

When you consider further that this practice opens a back door way to defeat the law--to eliminate the legal right of minors to obtain an abortion in situations where they do not want to seek parental consent--the recusal decision appears even more dubious.

Of course, these judges would (and should) recoil at the suggestion that they take the cases and uniformly deny requests. That course of action, the third option, would violate their oath to apply the law in an unbiased fashion, and would not be fair to the applicants. But, as Professor Koniak pointed out, by recusing themselves they have already taken a step down this path.

All things considered, a judge who cannot in good conscience apply the law fairly--who cannot do the job they have sworn to do--would seem to have only one option: resign.

Now that would be an honorable course of action. Judges who recuse themselves in these cases take the easy option that avoids the costs and imposes them on others.
Posted 9:30 PM by Brian Tamanaha [link]