Judges speaking on the U.S. Supreme Court’s recent decision overturning Roe v. Wade must hue closely to the majority, concurring and dissenting opinions and not provide their personal views on the controversial ruling or its ramifications, the Maryland Judicial Ethics Committee stated Thursday.
In its published opinion, the panel said judges must observe the ethical mandate of public neutrality on issues that may come before them in court even as emotions rage over the justices’ June 24 ruling in Dobbs v. Jackson Women’s Health Organization that abortion is no longer a constitutional right but subject to state regulation.
“A judge must be careful not to express any views that could be seen as manifesting a predisposition in deciding issues or cases that could come before Maryland courts,” the committee stated. “This is clearly prohibited by the code (of judicial ethics).”
The high court’s splintered decision in Dobbs has also spurred speculation that the justices will re-examine other rights, including those to same-sex marriage, intimate same-sex relations and contraception. Judges must not fuel this debate in their public comments but stick to what the justices wrote in their diverse opinions, the committee stated.
The ethics panel offered its view in response to an unnamed judge’s question regarding the propriety of accepting a church’s request to give a “historical presentation” on the Dobbs decision and “how it might relate to other rights.”
The panel said the judge’s presentation could address the decisions Dobbs overruled and the justices’ concurring and dissenting opinions but must not include the judge’s personal views beyond that.
“It is an understatement to say that Dobbs and the concurring and dissenting opinions have been the subject of much discussion, debate, and speculation,” the committee stated.
“(W)e caution that the requestor (judge) may not include in the presentation anything that could be seen as undermining the judge’s independence or impartiality,” the panel added. “This is particularly important because the Supreme Court held in Dobbs that the regulation of abortions is the responsibility of individual states. Therefore, it is possible that cases could be brought in Maryland courts on this issue.”
Retired federal and Maryland state judge Andre M. Davis said Friday that the obligation of neutrality assumes greater significance on a “legal matter as fraught” and “radioactive” as reproductive rights.
Judges should politely decline any invitation to talk about Dobbs before a religious group or other organization with outspoken views for or against the right to choose abortion due to the appearance of partiality, Davis said.
“Judges have to be extra careful,” he added. “Just say no. Don’t do it.”
Maryland law protects a woman’s right to abortion. An effort to enshrine that right in the state constitution by referendum this November was passed by the House of Delegates but died in the Senate this year before the Supreme Court’s decision in Dobbs.
Writing for the majority in Dobbs, Justice Samuel A. Alito Jr. said “Roe was egregiously wrong from the start” and that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” Alito said the Dobbs decision implicates no other rights recognized by the court as “abortion is fundamentally different … because it destroys ‘fetal life’ and what the (Mississippi) law now before us describes as an ‘unborn human being.’ ”
Alito was joined by Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett
Thomas in a concurring opinion said the court’s decision brings into question the constitutional underpinnings for the rights to contraception, same-sex marriage and intimate same-sex relations, which he said the justices should reconsider in future cases.
In dissent, Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan said these other rights are certainly in danger because “they are all part of the same constitutional fabric, protecting autonomous decision making over the most personal of life decisions,” that Roe v. Wade was.
In a concurrence, Kavanaugh limited his comments to the abortion issue, stating that “the Constitution is neither pro-life nor pro-choice. The Constitution is neutral, and this court likewise must be scrupulously neutral.”
Chief Justice John G. Roberts Jr., in a concurring opinion, said the high court could have upheld the Mississippi law banning abortion after 15 weeks of pregnancy without the “dramatic and consequential” act of overturning Roe v. Wade.
The ethics committee said a judge may discuss the decision and the justices’ various “positions on the arguable ramifications of the majority opinion.”
But “the judge may not offer his/her personal view on how the ramifications should or will be resolved or otherwise indicate agreement with any of the views expressed regarding potential ramifications of the decision,” the panel added.
Maryland Court of Special Appeals Judge Kathryn Grill Graeff chairs the 13-member ethics committee, which consists of six sitting judges, three former judges, a circuit court clerk, a judicial appointee and two people who are neither lawyers nor employed by the Maryland Judiciary.