Wednesday, September 07, 2005

Judicial Passive Activism?

What, a NON-New Orleans post? Can it be?

Balloon Juice brings us this cheery little story:

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.”

This sound familiar? Yep, it's the Moronus Operandi of the pharmacists who refuse to fill birth control pills and emergency abortion prescriptions because it's against their moral standards. Apparently, their moral standards are just fine with shoving their beliefs onto others who don't hold it.

Isn't this almost the same as the judicial activism conservatives scream about? In activism, a judge supposedly ignores a law he doesn't like to make his own. Here, a judge ignores a law he doesn't like and punts it aside. It's passive activism - I won't do it even though I'm supposed to as per my job description, my duties, and (if an elected judge) as per the wishes of the people who put me in office. But who cares about that? I'm paramount here.

This strikes me as a singularly stupid thing to do. Let's say the judge gets sued to be forced to hear a case like this and is ordered to - with only four of nine judges hearing these kinds of cases there could very well be a bottleneck someday. Now, any decision he makes against the teenager's wishes can be easily overthrown by pointing out that this judge once refused to hear a case due to his beliefs. Bingo. Decision reversed, abortion granted, judge doesn't do a damn thing but delay the process...and what if his delay places the teenager past the six month mark? Shouldn't be he be considered legally liable for the abortion then, when a fetus is generally considered to be viable as in Roe v. Wade?

How about if the case is a murder one involving a death penalty? Or a slander one where the judge is passionate about free speech? Or a divorce one where the judge holds marriage is eternal? You can see several cases where some sanctimonious judge could bow out, claiming their morals won't allow them to hear some case.

I don't accept it. It's YOUR morals, judges and pharmacists. It's neither the law of the land nor the morals of the person before you. If you're so against these acts and products that you feel cannot be associated with them, get out of your chosen industry and go into one that won't place you near them. Say preaching - since that's what you're already doing, you got a head start.

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