The law, especially taxing statutes, make a lot of counter-factual assumptions, in this way

Although I do rather sympathize with the Scottish Lord Justice-Clerk, who once interjected, “There’s too much of this d-ded deeming!”

However, I disagree about whether a Catholic judge might need to recuse himself.

For instance, the law might be established that forces a judge to consider something as fact that he knows should not be treated as fact – like being expected to treat a fetus as a thing rather than a person. The judge, knowing this in advance, knowing that it is not within his rights to change this aspect of the law, and yet knowing that he is right to recognize that the fetus is not merely a thing, should recuse himself – and say why.

It seems to me that anything else would be unethical.

Surely Casey had to know by the year 2004 that to include the health of a mother in the ban for partial birth abortion would have rendered the ban useless. I just can’t help but think that Casey in his ruling was a bit too close to the narrow thinking espoused by pro-life Rep. Bart Stupak in his acceptance of an EO to prevent tax-payer abortions in Obamacare.

The “health of the mother” and “the right to privacy” are the whole enchilada when it comes to us being in possession of the most liberal abortion laws on the planet. No one is asking for Casey as a Catholic to twist the laws to favor his conscience. A more than convincing case has been made successfully and repeatedly that the health of the mother does not comes into play with the procedure of partial birth abortion. This was why it was not written into the law in the first place.

Partial birth abortion takes (much) longer and causes more stress on the woman’s body. Partial birth abortion evolved by the abortion industry as a cost-saving procedure.

“In short, what Judge Casey did was exactly right. He was able, by his unique position, to expose the injustice of the very law (in this case, Supreme Court precedent) that obliged him to rule as he did. At a time when there has been no clear guidance on this issue—either from the Church or from leading Catholic lawyers—Judge Casey’s example is a model of Catholic jurisprudence.”

The explanation for why he says that is below:

“The question before us, then, is under what circumstances do a judge’s legal obligations require him to improperly cooperate in evil?

Let us suppose that there were a law requiring judges to order women to have abortions. In this case, the law requires an intrinsically evil act on the part of the judge. A judge, even by administering such a law honestly, would necessarily implicate himself in that act. Note that this situation is distinct from St. Thomas’s aforementioned hypothetical, because the latter concerns a judge who administers a presumably just law and arrives at an unjust outcome, whereas the former involves the application of an unjust law that requires an inherently immoral action on the part of the judge. The judge’s order would at least constitute immediate material cooperation in evil, which is itself sinful. Since dishonesty about the law is out of the question, the judge’s only morally acceptable options would be recusal or resignation.

Now contrast Judge Casey’s ruling, in which he invalidated a law prohibiting some abortions because he understood himself to be so bound by the Supreme Court. This case required the application of an unjust law (the Stenberg precedent), but such application did not necessitate the commission of an intrinsically evil act by the judge himself. The judge’s actions (striking down the ban) were far removed from the principal sinful act (the actual abortion), whereas in the previous hypothetical case the judge’s order would have caused that act. Judge Casey did not command the commission of any intrinsically evil acts; at worst, he refused to prevent others from committing those acts.

It seems to me that Judge Casey, and other judges who apply similarly unjust laws and precedents, can only be accused of mediate material cooperation in evil. In light of the oath of office and the duty to respect higher courts’ precedents, it is clear that there are proportionate reasons to make such cooperation licit.”

I think that makes it quite clear that the author was not in any way, shape, or form saying partial birth abortion (or any form of abortion) is morally OK. Entirely the opposite, in fact!

If I understand this correctly -Judge Casey’s ruling upheld the practice of partial birth abortion. So, that must mean that inducing birth of child just prior to full gestation – translation- probably able to survive outside the womb without much medical assistance – then shoving scissors in the back of its head of its head and sucking out its brains until the skull collapses is a moral practice?

Right.