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Jewish World Review Sept. 1, 1999/ 20 Elul, 5759

Marianne M. Jennings

Marianne M. Jennings
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The village, the children, judicial imperialism and abortion -- WATCHING ARIZONANS discuss a judicial order for a 14-year-old's 24-week abortion has been akin to watching a scene from Monty Python and the Holy Grail where the peasants determine, with convoluted logic centering on a duck's weight, whether a woman is a witch Their causal analysis is daft and solutions worse.

A fortnight ago, Judge William P. Sargeant of Maricopa County Juvenile Court, ordered government employees to transport the teen girl to any state where late-term abortion is legal. There are varying schools of thought on her pregnancy term (22 to 27 weeks being the range), but she is past the 20-week Arizona limit.

When the oddity and legality of a court-ordered expenditure of tax dollars to circumvent state law was raised by someone within the confidentiality-laden Child Protective Services (CPS) agency or juvenile system, Judge Sargeant found a technical distinction and specified the use of federal (Title XIX) dollars. Title XIX funds can be used for abortion under the standards of the Hyde amendment: incest, rape and health of the mother. Calling the pregnancy one resulting from statutory rape, the judge ordered the use of federal dollars.

Arizona has no statutory rape law. Sexual conduct with a minor is a crime, but it is not rape unless lack of consent is established. Inasmuch as this incorrigible carries her boyfriend's child, no police report was forwarded for prosecution.

Shakespearean woe abounds. This child has been in the government system since she was 5, her mother died in January and her father is in prison. Because of a skillful propensity to run away, she resides at the youth correctional facility. In the chief judge's press release of revelations to seal the case record, we learn she used drugs during her pregnancy. The village failed miserably with this child.

Hard cases make bad law, but arrogant judges, social workers and guardian ad litems make worse. The law required bending because the teen fled after a statutorily-timely abortion order was entered. When she returned in a non-timely way, the court still granted the post-20-week abortion on the grounds that the teen, adjudged competent by experts and given counseling on infanticide, still truly wanted the abortion. Those supervising delinquents should have some semblance of common sense. A fourteen-year-old barely has the capacity to decide between watching Scooby Doo or the MTV countdown. And a fourteen-year-old with a life in shambles largely because she has been doing whatever she wants needs adult intervention.

The guardian at litem, the judge and case workers pursued a goal of skirting Arizona law and defying the will of the people on the issues of abortion and state funds. Ignoring the horrific emotional aspects of the case and the underlying moral issue, they placed state employees in the untenable position of a choice between compliance with Arizona law or compliance with a court order. Wisely, some employee somewhere in the government systems, understood the fickle nature of the imperial judiciary and saw the state in an indefensible liability position in the event anything miscued in the transport or abortion.

The real issues have been ignored. The judge in the case behaved with the arrogance of the only nobility our republic knows. In one week, Cleveland had its publicly-demanded voucher program jeopardized and Arizona lost control of its abortion laws at the hands of judges. Laws are made through the legislative process, not judicially. Judges should interpret, not create. Judge Michael Ryan of the appellate court saw that and stayed the abortion, but the Arizona Supreme Court reversed and the abortion proceeds absent some federal court miracle.

But, the fate of a child caught in government social programs rests not just with the political leanings of the judge, but also with the guardian ad litem and the case workers. My bet is the guardian in this case is a pro-choice attorney who dominates a court room. And the experts used were those who give the case workers the results they want in everything from gestation clock to competency. Inextricably intertwined, experts are chosen, not for their independence, but for results consistent with the leanings of those who hire them. Social welfare systems are a mess for many reasons but they never rise above the sociological and political leanings of those who labor within them.

In these Clintonesque times, government leaders, sorting their ways through the weeping, wailing and gnashing of teeth, cut to the wrong chase.

An attorney general nervous about her pro-choice support barely squeaked.

Governor Jane Hull praised her for her actions brought on by the former attorney general's visit of shaming her into enforcing the laws. Governor Hull says it's over but assures that she is troubled that employees violated the girl's privacy. How can an executive see this carnage from a state social system and a judicial order for the taking of innocent life and express outrage only at the insubordination of those who revealed the flaws of the system and the immorality of skirting state law to terminate a pregnancy? And if a witch weighs the same as a duck and a duck floats, then a witch floats. Governor Hull should seek out those of complicity for reprimand, not threaten those of conscience.

Privacy platitudes and demands for a young ward's right to choose seem trite when life hangs in the balance, as it always does for the unborn child with no voice and no allies among the judicially arrogant and politically savvy.

JWR contributor Marianne M. Jennings is a professor of legal and ethical studies at Arizona State University. Send your comments to her by clicking here.


08/24/99: Naughty Newt?
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08/10/99: Ruining the finest health care system in the world
08/03/99: Nihilism and politics: ethics on the lam
07/26/99: Of women, soccer and removed jerseys
07/23/99: Not in despair, a mere mortal doing just fine
07/20/99: "Why me?" How about "Why us?"
07/13/99: Bunk, junk & juries
07/06/99: An Amish woman in a Victoria's Secret store
06/30/99: That intellectually embarrassing Second Amendment
06/24/99: Patricia Ireland eat your heart out --- but check out the recipe in 'women's mags' first
06/22/99: Dems and the Creator coup
06/17/99: True courage is more than just admitting troubles

©1999, Marianne M. Jennings