Caroline A. Placey, of Judicial Bypass Procedures, Moral Recusal, and Protected Political Speech: Throwing Pregnant Minors Under the Campaign Bus

• Publication year: 2007

COMMENTS

OF JUDICIAL BYPASS PROCEDURES, MORAL RECUSAL, AND PROTECTED POLITICAL SPEECH: THROWING PREGNANT MINORS UNDER THE CAMPAIGN BUS

I think that it was ridiculous, because they either were going to decide whether I was mature enough to make the [abortion] decision, but if I wasn't mature enough, then why would I have the kid, you know? Obviously, if I wasn't mature enough to make a decision like that, I wasn't mature enough to have a child.

-Corey Adams, a minor, on her petition to judicially bypass Massachusetts's parental- consent requirement¹

These silly solons [judges] should be slugged, not with a 2-by-4, but with a weapon that strikes terror . . . into the hearts of arrogant know- it-alls who delight in running roughshod over the will and the sensibilities of the majority of the people. It's a weapon that is as all- American and as grand and glorious as Old Glory itself-the ballot box.

-Washington Times letter to the editor²

INTRODUCTION

Imagine you are Miranda, the teenage daughter of immigrant parents who hammered into you that "sex was for bad teens who had not been brought up properly" and were frighteningly "angry and agitated" when your cousin had an abortion.³Or Mary, age sixteen, with a swaggering father whose "birds and bees" talk included threats to kill your boyfriend and to kick you out of the house if you ever became pregnant.⁴Or Bianca, a high-achieving straight- arrow teen with no emotional connection to your parents and a debilitating suspicion that your mother "wants to think the worst of [you]."⁵Or Beth, looking forward to becoming a college freshman after years of being passed from home to home as your parents struggled with alcohol and drug abuse and mental illness.⁶Imagine your mother is in prison and you have no idea where your father is.⁷Imagine your dismay when you realize that you are pregnant.⁸

Imagine your shock when you find that you have no choice but to become a mother unless you involve your parents or, somehow, a judge.⁹

Now, put yourself in the judge's place. You find yourself at a loss, unsure of how one might, in a short procedural hearing, assess a young stranger's maturity level and best interests.¹⁰You read the statute again, searching in vain for an opportunity to do justice, and wonder what the boys down at the capitol were thinking when they decided this sort of situation called for a judge's input.¹¹As a parent, these cases pull at your heartstrings; if this were your daughter, you would want the chance to help her yourself rather than later discover that she had to make such a difficult decision alone.¹²You are also frustrated, knowing that you hear more than your fair share of bypass petitions because some of your colleagues refuse to consider them.¹³Not only do you find the cases distasteful, but you also fear being perceived as pro-abortion and as an "activist" judge. Before you began hearing these cases, you never would have believed this was the law in your state, and you doubt your constituents would either.¹⁴Elections are on the horizon, and you are well aware that "in the present political climate, any positive association with abortion-especially the abortions of daughters avoiding parents-is bad for one's campaign."¹⁵

You take very seriously your oath to uphold the United States Constitution and the laws of your state,¹⁶but you are sorely tempted to follow your colleagues' lead and opt out of the cases altogether.¹⁷

In Bellotti v. Baird,¹⁸the seminal case on judicial bypass, a plurality of the Supreme Court wrote that "if the State decides to require a pregnant minor to obtain one or both parents' consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained."¹⁹According to the opinion, a pregnant minor is entitled to an anonymous and expedited proceeding before some type of adjudicator such as a superior court, a juvenile court, or an administrative agency or officer.²⁰A minor must be granted permission to make her decision independently if, at this hearing, she can show either (1) that she is mature and well informed enough to make her decision "in consultation with her physician, independently of her parents' wishes," or (2) that regardless of her competence to make the abortion decision, the procedure would be in her best interest.²¹

Currently, forty-three states have parental consent or notification laws on their books.²²Thirty-five of those states elect their judges,²³and in at least three of those states-Pennsylvania, Alabama, and Tennessee-judges have publicly announced their refusal to hear any case in which a girl seeks judicial bypass.²⁴

Judicial recusal typically occurs to protect a litigant from appearing before a judge whose personal involvement in an issue may leave that judge unable to render an impartial judgment in the case before him.²⁵Federal and state codes of judicial conduct and the American Bar Association Model Code of Judicial

Conduct provide general guidance regarding when a judge should disqualify himself from a specific case.²⁶But how should the judicial system respond when an elected state judge publicly announces that he is morally unable to provide an entire class of litigants the "cold neutrality of an impartial court"?²⁷

What should be done with a judge who declares himself ineligible to hear an entire category of cases?²⁸

At first blush, it seems logical to admonish the recusing judges for failing to live up to their judicial oath to uphold the law.²⁹This unwillingness to consider minors' abortion petitions is more than a personal ethical failing. In effect, the recusers are shifting "unpopular" cases to other judges who must then bear the moral and political brunt of applying what many regard as controversial laws.³⁰Moreover, in shirking their responsibilities, they create the appearance of impropriety by flagrantly jettisoning the public's perception of the judiciary as an impartial entity.³¹The implications of a judge's decision to publicly recuse himself from an entire category of controversial cases are thus broad and far-reaching, exposing weaknesses in the ability of judicial oversight boards to maintain "the integrity and independence of the judiciary,"³²risking increased politicization of the state judicial election process, and in at least one category of law, threatening to break a particularly delicate legal compromise.

This Comment argues that given the current political and legal environment, recusal decisions are far more complex than this initial negative portrayal suggests. While categorical recusals can be interpreted as examples of bad judicial behavior (i.e., cheap political maneuvering leveraged on the backs of a vulnerable population with little to no political voice), they are also a rational and-perhaps unintentionally-compassionate response to a fragile judicial bypass deal struck between state legislatures and the Supreme Court. This compromise forces state judges to make reproduction decisions that are not only distasteful but also illogical, probably unconstitutional, and almost impossible to reverse. Hence, although the categorical recusals may damage the public image of the judiciary as impartial decision makers and invite further politicization of state judicial elections, they are also true to the Supreme Court's holding that no third party should be granted arbitrary veto power over any woman's right to choose abortion.³³As long as a state requires either parental consent or judicial bypass in order for a pregnant minor to obtain a legal abortion, it would be disastrous for minors if the state were also to force morally troubled judges either to hear the cases or to resign.³⁴

This Comment's argument proceeds as follows. Part I reviews the background and rationale behind the judicial bypass compromise. Part II discusses the characteristics of the minors who seek judicial bypass and how the law has generally been applied.³⁵Part III describes the recusal process and addresses categorical recusal among elected state judges, using the Shelby County circuit that encompasses Memphis, Tennessee as a case study.³⁶Part IV discusses whether any citizens have the ability to preclude a judge from publicly announcing his refusal to hear a case or category of cases. Part V explores the implications of the recusal trend for judicial ethics and politics and for minors' abortion rights. This Comment concludes by recommending revisions to current parental consent and notification laws with the goal of better aligning the expressed constitutional objectives of the laws with real- world results.

I. THE JUDICIAL BYPASS COMPROMISE

Since the United States Supreme Court ruled in 1973 that the constitutional right to privacy encompasses a woman's right to control her reproduction via abortion,³⁷both the existence and the boundaries of this right have been controversial. State legislatures have tested the limits of Roe v. Wade, challenging where a woman's control over her reproductive decisions ends and where state interest in regulation begins.³⁸The legal limitation on the right of a minor to decide whether to procure an abortion is a particularly thorny question left open by Roe.³⁹

A. Establishing Pregnant Minors' Privacy Rights

The Court has struggled to provide guidance that both adequately protects a pregnant minor's reproductive privacy interest and recognizes the state's interest "in assuring the welfare of minors."⁴⁰In Planned Parenthood of Central Missouri v. Danforth, the Supreme Court explicitly rejected a state law that required any unmarried woman under the age of eighteen to obtain written consent from a parent or guardian before obtaining an abortion.⁴¹The Court recognized that minors, though subject to greater regulation than adults, have privacy rights protected by the Constitution.⁴²Hence, a state could abridge minors' rights by conditioning an abortion on the consent of a parent only if it could demonstrate a significant state...