Pro-Life Judges and Judicial Bypass Cases
Pro-Life Judges and Judicial Bypass Cases
22 Notre Dame J.L. Ethics & Pub. Pol’y 473
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This Note examines a “moral/formal” dilemma in judging. It addresses the legal and moral situation of a judge who believes abortion is morally wrong when the law requires that judge to order permission for a minor to have an abortion without her parents’ notice or consent.
How can the judge assess the morality of so cooperating with abortion? How should the judge respond to any conflict between the judicial role and the demands of conscience and morality? We enter “the ethical debate over the proper response of judges to a conflict between law and morality.” Legal scholars studying such conflicts recently have turned to this “judicial bypass” scenario as a test case.While this Note is as concerned with providing a reasoned analysis as with formulating conclusions, it agrees with other treatments finding that judicial bypass cases pose a serious issue of wrongful judicial cooperation in evil. It also agrees with those commentators who have concluded that morally conflicted judges probably can and should recuse themselves from bypass cases. Part I analyzes the constitutional and statutory law governing judicial bypass, showing how it requires the judge to issue permission for an abortion if the minor is sufficiently mature and well informed to make the decision on her own. Part II turns to case law and explains ways in which pro-life judges hearing bypass cases could make the procedure marginally more responsive to the state interest in encouraging childbirth over abortion and expressing respect for fetal life. Part III begins a moral analysis based on the Catholic moral tradition, considering whether a judge who issues a bypass cooperates immorally in abortion. Part IV examines recusal from bypass cases as one way that a judge can avoid complicity in abortion while remaining true to his or her legal duties. Part V examines resignation from the bench as another option in jurisdictions where recusal is unavailable or imprudent.