Judges and abortion: the judicial question becomes political

By , Hiller B. Zobel is an associate justice of the Massachusetts Superior Court.

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.''

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.

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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.

The legislation, however, permits a considerably less Olympian view of the process. A judge, it says, need only determine whether the applicant is sufficiently mature to be able to understand the abortion procedure and its possible medical consequences. He does not have to conclude that she does in fact understand.

If the judge is convinced that she is intelligent enough to deal with the facts when a doctor gives them to her, the judicial inquiry ceases.

Should the judge, however, conclude that the applicant lacks the capacity to understand, then he must decide whether the abortion will be in her best interests.

If my experience is any sample, one reaches this stage very rarely. When it happens, however, the judge's role becomes entirely nonjudicial, and therefore impossible.

Deciding whether or not it is in the best interests of an unmarried teen-ager to carry a baby to term against her wishes calls for skills and insights no judge possesses.

At least in child-custody matters, a judge has the benefit of presentations by opposing sides, and frequently an independent one on behalf of the child. In abortion hearings, nobody makes any effort to put the facts before the judge.

The teen-ager, speaking not under oath, says whatever she thinks the judge ought to hear. Her attorney, whose professional duty it is to help the client achieve her litigational goal, gives the judge only such information as the lawyer believes will persuade the judge to grant permission. Any inquiry by the judge which departs from the narrow language of the statute is impermissible.

It is no coincidence that in the four-plus years of the statute's existence, judges have authorized an estimated 1,000 abortions and have denied them on only a handful of occasions, each time meeting prompt appellate reversal.

Put another way, any teen-ager seeking an abortion is virtually certain to get it. The legislature might just as well have authorized abortion on demand. Yet, reading the statute suggests that a youngster can obtain an abortion only if she meets certain strict requirements, and first convinces a judge.

Thus we come to the kernel of the matter: The issue of under-18 abortions is not judicial at all; it is, as de Tocqueville would have put it, entirely ''political.'' That is, the question ought to be decided not by judges, but by the Commonwealth, speaking through legislators applying whatever standards of morality, ethics, and judgment normally go into resolving any difficult public problem.

Our statute, however, avoids the issue. It says to abortion opponents: ''The tests, fairly applied, would limit abortion; if they do not, blame those careless judges.'' Simultaneously, it says to abortion proponents: ''The tests are so simple that anyone can qualify; true, there will be some inconvenience and embarrassment, but the process will be cost-free, and the abortion certain.''

The statute has not solved the political riddle. It has merely sent the puzzle to court, still looking for the answer that the State House will not give and that the courthouse cannot fashion.

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