Should judges refuse to decide cases they have a moral objection to?

Specifically, I am referring to two Tennessee circuit court judges who have refused to preside over petitions by minor girls to get abortions without their parent’s consent.

A little background:

But two circuit court judges have refused to hear any petitions for minor abortions on moral grounds:

Judge D’Army Bailey and Judge Rita Stotts from the same circuit court hold a different view:

Should judges be allowed to pick and choose which cases they will take, based on moral grounds? Or does their oath to uphold the law,* all laws*, require them to resign if they find themselves unable to impartially discharge their sworn duty?

If the judges had a moral objection to the death penalty, should they be allowed to continue to serve? What if they thought smoking pot was harmless, should they be allowed to not try such cases? What if they thought murder was OK, and kinda fun in fact?

Seems to me these judges are opening a huge can of worms here. Off the bench they go.

I agree. A judge swears an oath to honestly and diligently execute the duties of his or her office, and to preserve, protect and defend the constitution and laws of the U.S., and of his or her state. There’s no opting out of cases in which you have a moral objection to the issue before you.

Unfortunately, in the real world, what this will mean is that the judge will almost certainly rule against those seeking to do what the judge finds morally objectionable. But at least the judge won’t have failed to carry out his or her duties.

I think its fine to do it and more intellectually honest than some of the alternatives. And Id rather a judge was ruling on that kind of case who wasnt trying desperately to find ways to disallow it. So the major issues would be practical ie making sure undue delays were prevented as a result.

It could get out of hand in theory but in practise I dont think any judge would want to pull this one too often.


He or she will if he or she decides the case on his or her moral convictions rather than the law.

I’m very strongly opposed to abortion, but I believe these judges are wrong.

I agree with this statement wholeheartedly, but the judge is supposed to decide if “the girl is ‘mature and well informed enough’ to make the decision on her own or that the abortion is in her ‘best interests.’” It is not the judge’s place to decide if the abortion is moral or not.


I agree with FlyingCowOfDoom on abortion and this issue. Judges need to deal with the law as it is and the facts as presented. The morality of abortion is not the issue before the court. If they can’t decide the case on the law and the facts, I think they should resign, not recuse themselves.

Judges need to deal with the law and facts, NOT morality and their consience. Granted, I rather they not preside over these abortion permission cases than simply throw every one out (or deny the girl the right to get one,) but as was said before, they are not ruling on whether or not the kid IS getting an abortion, just whether she is mature enough to make the decision to get one without parental permission (of course, I don’t believe a parent should have ANY say in a child’s reproductive rights, but that’s another issue entirely.)

Throw them off the bench, I say. Who knows what parts of their morals are creeping into the cases they DO preside over. I mean…can we trust these judges to preside over a case of a man who murdered abortion clinic doctors, for instance?

Wait a second.

Several people have argued here that a judge who interprets the Constitution should look BEYOND the law and facts, and find justice. A judge who reads the Constitution just for the facts won’t find the right to abortion there in the first place. It was judges’ ideas of morality and decency, justice and democracy, that brought about the Roe v. Wade decision in the first place. That’s the right decision not because the text of the Constitution says it, but because we can know the SPIRIT, the underlying essence, of the Constitution, informed by our evolving standards of a decent society.

Isn’t that right?

Bricker, I have great respect for you as a poster, but don’t you ever get tired of setting this trap?



No, it still delights me.

I’d be happier if the need to roll out this trap vanished, don’t get me wrong.

Here as in “in this thread” or here as in “on this board”? If the latter, how about waiting until someone shows up and makes that argument before throwing it out there like that?

On the board.

And I’m not waiting for someone in this thread to make it. This thread is not the sort of issue that people want judges using their own sense of morality and justice on.

My point is - as you well know - that if such behavior is appropriate for judges in other instances, why is it not appropriate here?

Would it help remove that strawman to clarify that the argument you’re denigrating is made only about high-level appeals courts, SCOTUS especially, when the issue to be decided is the spirit of the law and what the effective letter of the law should then be?

I haven’t seen anyone here make the claim that trial judges’ jobs in regard to interpretation of the law are anything other than cut and dried, essentially mechanistic. That’s whose conduct is the subject of the OP - trial judges who would put their personal morality above the letter of the law. They don’t get to judge the spirit or, especially, overrule the letter.

Now try it: Is it ethical for a trial judge to ignore the letter of the law? I doubt you’d disagree. Is it ethical for him to remove himself from a case where his personal feelings are in conflict with the law? Maybe - if it doesn’t deprive a defendant of his rights, as in the case where every judge in the district has those feelings.

So is it better to have them take a case they admit they won’t be able to rule justly on? Judges are human, they all have bias and opinions. I doubt any judge doesn’t have at least one or two rulings that his/her feelings have come into play. Would you rather they ruled on these cases anyway? Or admit they coudn’t rule justly, and let someone who (hopefully) could take over?

Which is what they are doing. By conceding that they are too bound to an ideological stance to adjudicate this issue objectively, and thus recusing thesmelves, they are permitting the cases to go to judges not so bound, thus ensuring that the law and the facts govern the issue rather than their own biases.

No parent should have any say in his or her child’s reproductive rights? What about the mother of an 11-year-old-girl pregant by a rapist? Or the father of a 16-year-old mentally disabled boy who nevertheless is showing sexual interest in women but lacks the intellectual or emotional facility to control his impulses, but does have the size and strength to inflict his will upon others?

Well, I’d say that their morals are not creeping into cases they preside over, in that THEY HAVE BEEN HONEST AND FORTHRIGHT ENOUGH to admit that they are not objective on this issue. They could just as easily have kept their opinions to themselves, allowed such cases to come before them, and ruled against the parties seeking an abortion every time. That strikes you as preferable?

I agree completely. A judge who isn’t willing to uphold the laws as they are written has no business being on the bench.

If the judge knows for a fact that is unable to dispassionately apply the law as it currently stands then he would have failed even more in his duties by staying on the case. Recusing himself allows an impartial judge to rule on the matter in his place.

I should say that I don’t think judges should be able to cherry pick whatever cases they are morally comfortable with hearing. They need to either agree to uphold the law in toto or not be judges. If not, we open the flood gates for judges recusing themselves from death penalty cases, drug cases, SOCAS cases, etc. They should not be permitted to selectively refuse to do their jobs because they don’t like the law.

Let’s take it into another arena. Should police officers be allowed to pick and choose which laws they will enforce? If they think a law is “immoral” should they be excused from enforcing that particular law but still be allowed to enforce laws which meet with their moral approval?

It’s no different for judges.

I agree. If they have to opt out of certain cases on moral grounds, then they shouldn’t be judges.