Sunday, September 4, 2005
Judges Opting Out of Abortion Cases
Today's New York Times contained an article reporting that some judges in states that require parental permission for abortion with an option to seek judicial permission not to tell a parent have begun to recuse themselves from such cases based on their belief that taking innocent life is immoral. The article cites a number of criticism of the decision and I'd be grateful to hear people's views on the question.
On the one hand, I think the analogy made in the article to phramacists' refusal to dispense emergency contraception drugs is misplaced. In my view, there is a difference between a pharmacist's refusal and that of a judge, who takes an oath to uphold the law.
On the other hand, although I don't disagree that "[u]nwillingness to follow the law is not a legitimate ground for recusal," if what the judge is saying is: "I do not believe I could be impartial here because of my moral views of the issue," then is recusal really inappropriate? If the judge is raising question about his ability to be impartial, is it the case, as Prof. Koniak is quoted as saying, that the judge's only choice is to enforce the law or resign from the bench? Some views from the legal ethicists out there would be welcome.
The article expresses the concern that this action could "spread across the nation and to subjects like the death penalty, medical marijuana, flag burning and even divorce." That is a good reminder that whatever views we form on this question ought to be views based on broader questions of separation of powers and not based on solely on the issue of abortion.
https://mirrorofjustice.blogs.com/mirrorofjustice/2005/09/judges_opting_o.html