(From the diaries -- Plutonium Page.)
Taking their cue from the odious Pharmicists for Life International (those dedicated health professionals who feel it's their right to refuse to fill valid prescriptions) we now have judges refusing to hear cases based on moral grounds.
MEMPHIS - A pregnant teenager went to the grand and imposing county courthouse here early in the summer, saying she wanted an abortion. The circuit court judge refused to hear the case, and he announced that he would recuse himself from any others like it.
"Taking the life of an innocent human being is contrary to the moral order," the judge, John R. McCarroll of Shelby County Circuit Court, wrote in June. "I could not in good conscience make a finding that would allow the minor to proceed with the abortion."
Tennessee requires parental consent for minors to have abortions, but has a provision for judicial bypass. According to one of the judges of the Shelby County Circuit Court, only four of the nine judges will now hear such abortion cases, though McCarroll is the only one to make his intentions public.
This new brand of judicial activism (or would it be non-activism?) isn't unique to Tennessee. Judges in Alabama and Pennsylvania have also said they will recuse themselves from such cases. Thirty-four states have parental notification laws, and 33 of them allow a judicial bypass (Utah is the exception), according to the
Allan Guttmacher Institute (pdf).
* 19 states require parental consent; 2 require both parents to consent.
- 15 states require parental notification; 1 requires that both parents be notified.
- All of the 34 states, except Utah, that require parental involvement have an alternative process for minors seeking an abortion.
- 33 states include a judicial bypass procedure, which allows a minor to obtain approval from a court.
For too many teens, parental involvement in the decision to have an abortion is neither practical, nor advisable. The judicial bypass is critical for teens in abusive households, where telling either or both parents is likely to endanger the teen. Likewise, many pregnant teens are the victim of incest
This movement by judges brings up some complicated questions. One's first assumption is that judges are supposed to be making their decisions based upon established law, period, and personal beliefs should never be grounds for recusal. But is having a pro-life judge deciding a pregnant fifteen year-old's fate necessarily the best thing for that child? Can we trust the impartiality of that pro-life judge? Considering many judges are elected, can we trust that they'd be acting according to established law, or with an eye toward the next election?
On the other hand, what if the jurisdiction in question has only one judge? Does the refusal by that judge to hear the case create an undue burden on the young woman, as she'd be forced to go to another location?
In the case of Judge McCarroll, 12 experts on judicial ethics have written to the Tennessee Supreme Court to protest his decision.
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.
A spokesperson for the Court said that they would not take action on the letter.
I'm interested to hear what the legal minds among us kosizens think of this, and what questions they'd have for Chief Justice Nominee Roberts in light of this new movement.