Judges and abortion: the judicial question becomes political
In the United States, as the perceptive de Tocqueville remarked more than 150 years ago, ''There is hardly a political question which does not sooner or later turn into a judicial one.''Skip to next paragraph
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Although judges, as a group, do not attract much of the public's affection or esteem, Americans exhibit an astonishing eagerness to submit their destiny to them.
Our society expects judges, like old-time country squires, to adjust every dispute and to achieve every necessary compromise and consensus.
The public regards judges as what the historian Henry Steele Commager called ''the aristocracy of the robe.'' Better we should realize that trial judges are simply uniformed - and frequently uninformed - public employees, hired to perform certain limited tasks.
Force a judge into different work, and she or he becomes a bungling amateur. When society asks judges to solve political and social difficulties that are really soluble only by other branches of government, the difficulties multiply.
Some years back, the Massachusetts legislature addressed the question of the under-18-year-old who wishes an abortion but cannot or will not obtain parental consent. (In discussing the resultant statute, which illustrates with particular poignance our strange reliance on judges, I am expressing no view on the underlying issue of abortion - for minors, or anyone else. Process alone, not subject, is what I ask you to consider.)
The statutory arrangement is simple. If an 18-year-old has not, for whatever reason, obtained the consent of parent or guardian, she may petition the Superior Court for permission. An attorney will be provided for her at state expense; her petition will be sealed to ensure perpetual anonymity; and her application must receive priority, confidential, judicial attention.
The judge meets the applicant in the presence of only her lawyer, a court clerk, and the court reporter (i.e., stenographer). Just one question is before the court: Should the judge authorize a physician to abort the pregnancy?
To answer, the judge must follow certain statutory requirements. First, he must determine whether the applicant is ''mature and capable of giving informed consent to the proposed abortion.'' If the conclusion is ''Yes,'' the inquiry ends, and the authorization issues.
If, however, the answer is ''No,'' the judge must go on to decide whether the abortion ''would be in her best interests.'' If his decision is affirmative, abortion, once again, is mandatory. Now one's views on the appropriateness of affording abortions to or withholding abortions from teen-agers (as they usually are) are completely irrelevant to an evaluation of the statute.
Here, I am inviting attention not to the morality or amorality of pregnancy termination, but to the social wisdom or folly of leaving the terminating to judges.
The statute appears to assume that with the robe, a judge acquires omnipotence, omniscience, and omnicompetence in a combination rarely (if ever) found on Earth. Indeed, if one regards abortion as the deliberate taking of life , it requires the judge to determine who shall live and who shall die.