Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, August 27, 2004

Partial-Birth Abortion and the Catholic Judge

Judge Richard Conway Casey, a Catholic judge, struck down the partial-birth abortion ban yesterday. In his opinion, Judge Casey makes explicit findings of fact that the banned procedure is "gruesome, brutal, barbaric, and uncivilized." He also finds that the procedure causes the fetus severe pain. Nevertheless, he concludes that, under the Supreme Court's ruling in Stenberg, "this gruesome procedure may be outlawed only if there is a medical consensus that there is no circumstance in which any women could potentially benefit from it. A division of medical opinion exists, according to Stenberg, according to this Court, and even according to the testimony on which Congress relied in passing this law. Such a division means that the Constitution requires a health exception."

My question is this: on what basis is Judge Casey morally culpable for this ruling? To the extent that he, in good faith, interprets Stenberg as requiring a medical consensus and believes that the evidence presented to him in court fails to establish that consensus, what was Judge Casey morally obliged to do? Should he have sought to create the impression of indeterminacy in the law even if he did not believe it to be indeterminate? Should he have sought to twist the factual record to suggest a medical consensus even if he did not believe that that consensus exists? Should he have openly defied Stenberg? Should he have recused himself? Resigned from the bench entirely given the likelihood of similar cases in the future? Is it enough that he went out of his way and utilized his fact-finding discretion to emphasize how abhorrent the procedure is even though his legal analysis rendered those findings immaterial?

Put simply, what should a Catholic judge do when faced with pro-abortion precedents that he considers dispositive of the case before him? Before we reflexively conclude "recuse," isn't there something to be said for the pedagogical impact of Judge Casey's findings of fact? Wouldn't recusal have wasted that opportunity?



Vischer, Rob | Permalink

TrackBack URL for this entry:


Listed below are links to weblogs that reference Partial-Birth Abortion and the Catholic Judge :

» National Abortion Federation v. Ashcroft and the Strange Career of Partial-Birth Abortion Bans from Times & Seasons
By now, most everyone has probably seen the district court decision invalidating the partial-birth abortion ban. It's no surprise that the judge in that case invalidated the law. The law did not... [Read More]

Tracked on Aug 28, 2004 1:13:37 PM

» Judge Not, Lest Ye Be Judged? from Aurochs and Angels
Rob Vischer at the splendid Mirror of Justice considers (here and here) the case of Judge Richard Conway Casey, the federal judge who is both a Catholic and the author of a recent opinion striking down the partial-birth abortion ban [Read More]

Tracked on Aug 29, 2004 3:41:28 AM