Friday, August 27, 2004
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?