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Abortion Decision Undercuts Rule of Law

The National Law Journal (p. A23)
Monday, February 24, 1997

By John C. Klotz Special to The National Law Journal

LAST MONTH , U.S. District Judge John Sprizzo decided to acquit two clerical protesters at an abortion clinic in Dobbs Ferry, N.Y., of criminal contempt on the grounds they were acting out of religious conviction. The defendants had blocked an entrance to an abortion clinic in violation of the judge's own orders. This decision has loosed a torrent of comment.

The judge determined that the protesters had in fact acted criminally, but he acquitted them anyway, claiming a "prerogative of leniency" generally referred to as "jury nullification."

Jury nullification occurs when a fact-finder refuses to convict a defendant, even if the circumstances otherwise would compel such a result. Judge Sprizzo likens his decision to that of the colonial jury that acquitted Peter Zenger of libel and thus laid the framework for the honored place of free speech in the American Constitution.

Advocates of a woman's right to choose see it differently. They fear that Judge Sprizzo's decision will serve as justification for continued abortion clinic violence by giving official sanction to the rationale advanced by violent as well as peaceful protesters. One hopes the critics are wrong, but the decision illuminates how indistinct the distinctions that govern our jurisprudence can be and the mischief that awaits when they are capriciously discarded.

At the heart of Judge Sprizzo's decision is the most elemental distinction of all: that between fact and law. In theory, the judge determines the law and the jury determines the facts. While nonjury contempt proceedings, by their nature, blur the distinction between judge and jury, one would think they do not blur the obligation of a judge to apply the law to the facts as he determines them.

"The government of the United States has been emphatically termed a government of laws, and not of men," Chief Justice John Marshall wrote in Marbury v. Madison. "It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." By refusing to apply the letter of the law to concededly criminal acts of the defendants, Judge Sprizzo's decision perforce denies the protection of the law to the constitutional right of women to abortion services as defined by Roe v. Wade. It also undercuts his own order.

A Disparaging Decision

Judge Sprizzo's decision both disparaged the moral force of his order and attacked other jurists who might ignore the moral prerogatives of abortion protesters. The defendants in contempt of his order might be as morally justified as an individual in an earlier time who defied the Dred Scott decision by refusing to return a runaway slave. Were there not supervening moral justifications, he argues, how could one justify the prosecution of "government officials, including judges, for implementing the positive laws of Nazi Germany?" Implicit in his argument is abortion as holocaust.

Not content with historical analogy, he fires a chilling shot over the heads of contemporary jurists. Recent events in Bosnia ought to be taken in to account "because of present United States commitments to international treaties on human rights, which could conceivably, at some time, put United States' positive laws relating to abortion and the judges who implement them at variance with and in violation of a future international consensus on that issue."

Is the judge suggesting that the gallows may await judges who enforce the right to choice as defined by American law? While the debate over Judge Sprizzo's decision has been largely couched in terms of jury nullification, the crux of the problem is not nullification, but the duty of a judge to apply the law fairly to the facts of a case.

No prospective juror holding the sentiments expressed in the decision would have survived careful voir dire. But while we aggressively test a juror's bias, we walk on cat feet when dealing with that of a judge. Instead of voir dire, we are restricted to recusal for protection from judicial bias.

Recusal motions, while not unheard of, are uncommon. In the first instance, the judge of a trial judge's bias is the judge himself. Effective appeal comes only by mandamus, for which the standard of review is normally capriciousness and arbitrariness. As a practical matter, the only effective protection from judicial bias is the conscience of the self-same judge.

Therein lies the dilemma. When a judge personally abhors the morality of a law he is called on to uphold, is he not "morally" bound to recusal? Is this not particularly so in the area of abortion rights, where the convictions of so many are so deep and rigid?

The more contentious the issue, the more crucial it is that we heed Justice Marshall's admonition that we be a government of laws rather than of men. That is something with which most women would agree.¤

Mr. Klotz is a Manhattan trial attorney. On occasion he has represented members of the judiciary.

Copyright 1997, The New York Law Publishing Company. All Rights Reserved.

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