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Sunday, September 04, 2005
Law - "On Moral Grounds, Some Judges Are Opting Out of Abortion Cases"
"On Moral Grounds, Some Judges Are Opting Out of Abortion Cases" is the headline to this Adam Liptak story in today's NY Times. Some quotes:
MEMPHIS - 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.An opinion piece by Florence A. Ruderman in Thursday's NY Times, titled "Prescription for Injustice," discusses pharmacists who refuse to fill prescriptions they do not agree with:"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."
The teenager was in court because Tennessee, like 18 other states, requires minors to obtain a parent's permission before they can have an abortion.
But the state also allows another option. The teenagers can ask a judge for permission to decide for themselves.
Judges, however, are starting to opt out. Other judges of the Shelby Circuit Court have recused themselves like Judge McCarroll, and now, according to one judge, only four of the nine judges on the court hear such abortion applications.
Judges in Alabama and Pennsylvania have also said they will not take such cases.
The actions, similar in some ways to pharmacists' refusal to dispense drugs related to contraception or abortion on moral grounds, have set off a debate about the responsibilities of judges and the consequences of such recusals, including political ones when judges are elected rather than appointed.
Judge McCarroll's decision prompted 12 experts on judicial ethics to write to the Tennessee Supreme Court in late August. The experts called his action lawless and said they feared that his approach could spread around the nation and to subjects like the death penalty, medical marijuana, flag burning and even divorce.
"Unwillingness to follow the law," the letter said, "is not a legitimate ground for recusal."
There is now a growing movement of pharmacists who refuse to fill prescriptions to which they have moral or religious objections. One such organization is Pharmacists for Life International, which claims to have 1,600 members. Almost always the refused prescriptions are related to birth control. Many women have already met with these refusals. Some have been hectored and humiliated. And some refusals have involved women who have been raped, or whose lives or well-being would be endangered by a pregnancy. At least one lawsuit has already been filed; more are expected.For background, see this ILB entry from April 2, 2005.The pharmacists involved in this movement sometimes cite "business judgment" to justify their refusal to fill particular prescriptions. More often, however, they invoke "conscience." And now they are asking for state laws that not only recognize a right to refusal, but also shield them from lawsuits if that refusal results in harm.
This may sound simple. Shouldn't a democracy respect claims of conscience? In fact, such claims are not simple; they are highly problematic. And they should not wipe out competing claims or override consideration of wider social consequences.
From 1957 through the early 1960's, I conducted a study of doctors' views and behavior in clinical situations involving birth control. Here I found ample evidence of how complex claims of "conscience" can be. A doctor's decision to prescribe, or not prescribe, birth control depended not only on his personal moral or religious convictions, but also on a web of community and institutional pressures. Sometimes these pressures led doctors to act - to their own unhappiness - in ways that were contrary to their own beliefs.
For pharmacists to claim that they have a right to refuse to fill valid, lawful prescriptions based on their own moral or religious beliefs can amount to a claim that they have a right to determine how patients may care for their own health, and what doctors may or may not prescribe. In effect they claim the right to annul birth-control-related prescriptions. In some cases pharmacists have refused to provide information on other pharmacies where a prescription might be filled or have refused to return a prescription so that a woman might go elsewhere. These pharmacists are not simply "opting out" for themselves; they are making it impossible for certain prescriptions to be filled at all.
Allowing a pharmacist the right to refuse to fill a legal prescription, without simultaneous safeguards to ensure that the prescription can be filled promptly elsewhere or by someone else, surrenders the right of the majority to willful obstruction by a determined minority. It is important to realize that even with some legally specified safeguards for transfer or referral, a movement of this sort can have the effect of depriving many women of birth control. In small towns or rural areas, there may not be another pharmacy, or a woman may have no way to get to one that is far from her home. And other pharmacists may be unwilling to fill contested prescriptions, out of fear of becoming targets for boycotts or other hostile actions. This is a way to nullify the laws of the land - with a state-provided shield for doing so.
Clearly it is women who will be most directly and immediately affected. But the pharmacists' refusal movement threatens everyone. Similar tactics can be used to subvert or negate other laws and other rights that may be contrary to some individual's or group's moral or religious views.
Posted by Marcia Oddi on September 4, 2005 02:32 PM
Posted to General Law Related