With the recent death of Chief Justice of the United States William Rehnquist, the nomination of John Roberts to fill the position and one vacancy still remaining on the bench, all eyes are on the Supreme Court.
President George W. Bush has announced that he wants all nine positions filled when the court reconvenes in October, so the next month will see story after story written about the nominees and how the new makeup of the court will affect any number of issues – including ones often considered of special importance to women.
But somewhere several levels below the Supreme Court, much lesser-known judges are making an impact on women’s rights. According to a Sept. 4 New York Times story, it is becoming more common for judges to recuse themselves on moral grounds from cases involving parental-consent laws.
Eighteen states currently require parental consent for minors attempting to have an abortion. If parental consent is impossible, due to safety or a variety of other reasons, minors can go before a judge to ask for the right to decide for themselves whether or not to carry the pregnancy to term.
The comparison between these judges and the pharmacists who have made headlines by refusing to fill prescriptions for the morning-after pill and other forms of birth control itself is easy to draw, and the New York Times rightly does so. Both cases can create an undue burden on women seeking to exercise what is still their legal right. In many rural counties, obtaining an abortion is hard enough.
Forcing a woman – who must already travel outside her county or even state to find a place at which she can have an abortion – to further travel to plead her case before a judge can make the exercise of this right practically impossible. Delaying judgment because of the recusal can have serious consequences for the woman in question – time is a factor in these cases, and delay can be the same as an unwarranted denial.
While I agree that it is better for a judge to recuse him or herself rather than decide a case based not on the law, but on his or her own moral judgment, the issue should not come up at all. Judges have a duty to uphold the law regardless of their personal opinions. Supreme Court opinions are full of examples of justices who objected to a law for one reason or another, but upheld it on legal grounds nonetheless.
As people of considerable legal power, judges also have a duty to make the impartiality of justice clear.
They may pass judgment only within the bounds of the law, not outside of it. When they remove themselves from a case because of stated personal objections to the subject, they send a clear message to the woman involved – we do not support this right, and we will not defend it. How are we to trust that a judge who has publicly admitted an inability to look at cases impartially, only through the lens of the law, can look at any other case fairly? What rights will judges next refuse to protect?
Stoll can be reached at email@example.com.