Judges Opting Out of Abortion Cases

In several states, minors who want abortions must either have parental permission or get a judge to approve. Some judges who disagree with abortion on moral grounds are refusing to even hear such cases. This may sound appropriate, but in fact these judges are violating their oaths to do their jobs and uphold the law.

The New York Times reports on the situation in Tennessee:

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. ... The [12 experts on judicial ethics] called [such] 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.

The refusal of some to hear abortion cases can cause problems for other judges: not only does their workload increase, but they could experience problems in their next election:

[Judge D'Army Bailey] 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."

Should judges really be in the position of wondering whether they will lose their position because they were willing to do their job while their colleagues refused?

Brian Tamanaha writes:

[F]rom 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.

The analogy to pharmacists is very strong. If pharmacists are allowed to refuse to do their job, then how many independent pharmacies will be forced by community pressure to refuse to do their job, even if they personally don’t have any objection? Why should the democratic process be subverted by a few well-placed people who are more interested their own ideologies than in upholding the rule of law?

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