I don’t like abortion.
I do, however, recognize that it is the settled law of the land, and I will abide by that law. I will never put myself in a position to cause an abortion, and I really have no problem with parental notice and 24 hour waiting periods, in general.
I recognize that there are some people who think abortion is murder all the time. I recognize that there are those who think that abortion should be legal all the time. I think both camps are a bit extreme.
I do recognize that not all people feel the same way I do, and, with that in mind, I have staked out a clear weasily middle ground that leaves me ripe for attacks from both sides. I do, however, respect the law and the people we have elected to write and administer the law, and believe that just because some people want to end abortion all the time, they have no right to force their viewpoints on individuals, particularly in cases in which we have determined there is a right to privacy, invented or not, bad logic of Roe v. Wade or not. If it is legal, and they are within their rights, your vieewpoint does not matter, however sincere you are and however strong your belief may be.
As such, I have not had much to say about the abortion case in Florida in which a 13 year old, a ward of the state, got pregnant and requested to have an abortion. The Florida Department of Children and Families, everybody’s favorite new political football in the abortion/religion/culture of life debate, did the wrong thing, in my estimation, trying to stop the abortion. Florida law is pretty clear:
743.065 Unwed pregnant minor or minor mother; consent to medical services for minor or minor’s child valid.–
(1) An unwed pregnant minor may consent to the performance of medical or surgical care or services relating to her pregnancy by a hospital or clinic or by a physician licensed under chapter 458 or chapter 459, and such consent is valid and binding as if she had achieved her majority.
(2) An unwed minor mother may consent to the performance of medical or surgical care or services for her child by a hospital or clinic or by a physician licensed under chapter 458 or chapter 459, and such consent is valid and binding as if she had achieved her majority.
(3) Nothing in this act shall affect the provisions of s. 390.0111.
I understand that the DCF is under statutory pressure and obligation to not consent to abortions, but they were not the ones consenting- the thirteen year old was. As the law states, the thirteen year old’s consent was to be viewed as “valid and binding as if she had achieved her majority.”
This case is sad for a number of reasons. If you think about it, it is simply sad that a 13 year old has to grow up in the custody of the state. It is sad the DCF did nothing to report her absence when she ran away. It is sad young people are having careless and loveless unprotected sex. Everything about the case is saddening.
But what really angers me is that this was a political maneuver- a game, and there was no excuse for it. In the past, this never would have happened, and for those who want to correct me, according to the NY Times, it never has:
Carolyn Salisbury, associate director of the University of Miami Children and Youth Law Center, said she knew of many minors in state custody who had received abortions, and of only one other case where the state had objected. In that instance, she said, a state lawyer dropped the objection on being reminded that Florida does not require parental consent.
“Her case shocked me because for decades, girls in foster care have been consenting to their own abortions,” Ms. Salisbury said. “The state wouldn’t aid the girl but it wouldn’t stop her, either.”
The law is clear, but with Schiavo having just died and the usual suspects looking for payback, or affirmation of their beliefs, or whatever, the state through its agency engaged in a little game of political football in clear violation of Florida law. And, as such, this will be spun as another example of judical activism and an out of control judiciary. Look at the rhetoric coming from Jeb Bush:
“Look, if the judge has ruled, it’s time to move on,” Governor Bush said. “It’s a tragedy that a 13-year-old child would be in a vulnerable position where she could be made pregnant, and it’s a tragedy her baby will be lost. There’s no good news in this at all.”
Bush is smart, and he recognizes that what his DCF tried to do was clearly against the law, so now he is distancing himself and putting this all off on one of those ‘activist judges.’ And let’s be clear- the judge did not rule on whether or not she should have an abortion- the judge was not in a position to make such a determination. He was simply required to judge whether or not she was mentally competent, which she clearly is:
“Why can’t I make my own decision?”
That was the blunt question to a judge from a pregnant 13-year-old girl ensnared in a Palm Beach County court fight over whether she can have an abortion.
“I don’t know,” Circuit Judge Ronald Alvarez replied, according to a recording of the closed hearing obtained Friday.
“You don’t know?” replied the girl, who is a ward of the state. “Aren’t you the judge…”
L.G., who told Alvarez she had run away at least five times from her youth shelter, maintained, “It would make no sense to have the baby.”
“I don’t think I should have the baby because I’m 13, I’m in a shelter and I can’t get a job,” the girl said as Alvarez and her guardian ad litem, assigned to shepherd her in the legal system, questioned her.
L.G. laid out different reasons for wanting an abortion.
“DCF would take the baby anyway,” she said, but later added: “If I do have it, I’m not going to let them take it.”
She also questioned the health risk of carrying the fetus to term.
“Since you guys are supposedly here for the best interest of me, then wouldn’t you all look at that fact that it’d be more dangerous for me to have the baby than to have an abortion?” she asked. Alvarez called that “a good point.”
Activist judges are not running around forcing thirteen year olds to have abortion. Judge Alvarez did not pick up a phone book, flip through the pages, and randomly choose a pregnant 13 year-old so he could order her to have an abortion. All he did was rule that she was competent to make her own decision, a clear affirmation of extant law.
This should be recognized as ‘doing his job,’ and this was not judicial activism in any sense of the term. It was activism on the part of the DCF to politicize this issue in clear contradiction of the law of Florida, but this was not judicial activism. It was judicial restraint. Judicial activism would have been ruling that a clearly competent minority entitled to act on her own behalf as a majority is ‘incompetent.’ Now THAT would have been blatant judical activism.
Which is precisely what some people want:
The barely teenaged girl is a ward of the Florida Department of Children and Families and has run away numerous times. Judge Alvarez also ordered either the young girl’s custodians or attorneys (one of her lawyers is the executive director of the American Civil Liberties Union of Florida) to actually drive her to get the abortion.
“Here you have yet another judge who has established a pattern of decisions that are contrary to stated public policy. This is a clear example of a system that should be protecting this young girl and her unborn child, yet has failed miserably,” says Tony Perkins, President of Family Research Council.
“Judge Alvarez created rights for a 13-year-old girl who is far too young to make such decisions and understand the repercussions, both physical and emotional, of terminating her pregnancy,” continues Perkins.
“The ACLU and Judge Alvarez seem to believe children know best when it comes to abortion even though they legally cannot determine whether they are ready for a body piercing, tattoo or even a tanning booth until they have reached the age of eighteen in some states. This is an absurd and very harmful abuse by the ACLU and Judge Alvarez to advance their own political agendas regardless of who will get hurt in the process.”
Judge Alvarez created no rights for this girl. The ACLU made no judgement on what rights she should have. The Florida legislature did.
Keep this in mind when you hear about judicial activism, because what is really being debated here is not judicial activism, but control of the judiciary and instilling judicial activism. While there are clear cases of judicial activism, the now focus-grouped phraseology is being applied broadly and inappropriately as a weapon in the culture wars.
If you follow the logic of the tanning booth or body piercing comment, what they want is rather blatant and straight-forward activism. They want a judge to say something like this:
“Despite the clear intent of the legislature to confer majority status to minors regarding their health care in cases such as this, I find that this makes no sense in a state where we forbid minors to vote, buy liquor, get tattoos, have elective cosmetic surgery, or go to a tanning booth without permission from their parents. Therefore, I am ignoring the law and forbidding this girl from having an abortion by declaring that she is incapable of making that decision.”
That is what they want, and that is judicial activism. It doesn’t get any clearer than that.
You don’t have to like abortion, but you do have to respect the law. If you don’t like the law, change it. Change your representatives and other elected officals. Change the governor and replace him with a governor who will move to change the Florida Constitution.
But quit pretending there is some crisis in the judiciary when decent people apply the law as written, and quit smearing good people. And most of all, quit attacking our judges, the overwhelming majority of whom are doing EXACTLY what they are supposed to do- faithfully interpreting the law and applying it fairly.