A Nebraska Juvenile Court judge resigns instead of giving a minor the go-ahead to have an abortion

On August 25, 1993, I resigned as Juvenile Court Judge in Douglas County, Nebraska, rather than accept an abortion case assigned to me.  Robert Destro, a law professor at Catholic University in Washington, commented that my resignation was “a pretty drastic step.”  This is the story of that drastic step.

In 1991 the Nebraska legislature passed a law which requires that notice be given to a parent of any pregnant minor 17 years of age or younger who requests an abortion.  The law also provides for a “judicial bypass” in the even the minor does not want to notify her parent(s) – she may have a hearing before a judge to obtain authorization for the abortion, without notifying a parent.

The definition of abortion in the law states that it is “an act, procedure … administered with the intent and result of producing premature expulsion, removal or termination of human life within the womb of the pregnant women.”  The law itself states that it is human life, and defines abortion as the destruction of that human life.

At the hearing, the judge is to determine whether the pregnant minor is mature and can give informed consent.  If the evidence shows she is, then the court must authorize a physician to perform the abortion.  If he decides the minor is not mature or is unable to give an informed consent, the judge must go a step further and decide whether the abortion is in her best interests.  If the court decides in the affirmative, then the court must authorize the physician to perform the abortion.  In either case, the judge is a primary participant in putting to death an innocent human being.

I had always believed abortion was wrong, although I did not know much about it, or about the development of life in the womb.  I decided that I could not morally remain in a state of culpable ignorance, so I began reading all I could find about abortion.  An excellent source was a book recommended by an attorney friend, John Kellogg, entitled Justice for the Unborn by a Michigan Juvenile Court Judge, Randall J. Hekman.  He had refused to comply with a law similar to Nebraska’s and wrote about it.  By the time I was assigned a case, on August 25, 1993, almost two years after the effective date of the law, I knew what I had to do.

The Clerk of the District Court assigns the cases at random; when she called, I asked her if it was possible to excuse myself.  She said she would check and get back to me.  In the meantime I called my wife Gretchen; we had discussed the law many times and the alternatives to authorizing an abortion.  First, I could accept the case and hope the evidence would be insufficient to prove maturity or best interests, but in any event I would be determined not to authorize the abortion.  I considered this a dishonest approach; more, my decision would be subject to appeal, and the Supreme Court could reverse it and order me to authorize the abortion.

Secondly, I might have gone ahead and complied with the statue on the grounds that, if I didn’t, somebody else would; I decided that this would not be a sufficient excuse to authorize the taking of an innocent human life.  Of course, I could have simply refuse the case, but that would have been a direct violation of a canon of the Code of Judicial Ethics.  So I decided that I should resign my position – and make my reason public.

When I told my wife I had been assigned a case, she asked me only to wait 24 hours before submitting my resignation.  I then called my pastor and discussed the matter with him.  He agreed with my thoughts on the matter, and said the law seemed to be quite clear.  When the Clerk called back to confirm that I could not be excused, I told her that I would have to resign.  She said, “All right.”  I prepared a letter of resignation to the Chief Justice of the Supreme Court of Nebraska, setting forth my reasons, and quoting President Lincoln concerning slavery: “No law can give me the right to do what is wrong.”

In addition to my secretary, I showed the letter to my bailiff and court reporter.  All three were quite distraught, and they too urged me to think about it overnight.  By the next morning, word of my decision had gotten around to some of the other judges, who called and advised me not to resign.  However, I mailed the letter to the Chief Justice that day, and then called an Omaha World-Herald reporter, who immediately came to my office. He interviewed me for over an hour, and left with a copy of the law and of my letter of resignation.

The irony of the situation struck me: in serving for 21 years as a Juvenile Court Judge, I had the task of protecting small human lives from abuse, now I was being required to authorize the destruction of what the law itself says is a human life.

In order to achieve a change in the law, I believe that the pro-life position must receive as much support and publicity as possible; it was for this reason I made my position public.  But I was surprised at how public it quickly became: on Friday, August 27, the Omaha World-Herald splashed a headline “Judge Moylan Resigns Rather Than Authorize an Abortion” all the way across the top of its front page.

Reporter Michael Kelly wrote that I had resigned “based on conscience” and quoted me as saying, “This is the first law I have encountered in 21 years in this position that I am unable to enforce.”

After the World-Herald story, I received numerous phone calls and hundreds of letters of congratulations and thanks for my contribution to the anti-abortion movement.  Catholic priests talked about my action in their sermons that Sunday. Several bishops were also very supportive, including my own Archbishop Eldon Curtis, and the bishop of Lincoln, Damian Bruskewitz, who wrote, “I am sure your action of resigning from the bench made a stronger contribution than all of your other wonderful works and acts over the course of your judicial career.”  If ever I doubt my decision, remembering his encouraging words will assure me it was right.

Support also came from afar, including a Jesuit from Washington, DC who wrote, “It reminds me of all those Dutch physicians who refused to cooperate with the Nazi-imposed ‘sterilization laws’ during the Occupation.  Our century has not seen much good, but a few solitary witnesses always encourage the faint-hearted.”

Another interesting letter came from the founder of International Cops for Christ, Inc. in New York City.  He wrote, “I read about the courageous stand you took for the life of the innocent unborn.  Thank you for doing this.  It is an inspiration to all pro-lifers to see such resolve.”

A high-school coach in Western Nebraska wrote, “I heard your story in WEMI concerning the stand you took regarding abortion that caused you to forfeit your job.  I have been teaching, coaching and serving in this community and school district for 22 years.  I am always looking for role models, motivational quotes and stories to inspire and influence my students.  As an encouragement and credit to you, I plan to use your example of standing up for one’s beliefs to the point of personal sacrifice this year in my Senior Health Class when we get to decision making, values and beliefs. I commend you on your strong stand and pray that you and others like you in positions of influence will be willing to obey God’s Word at the expense often of personal gain and position.  Maybe this will help wake us up as a nation, and drop to our knees asking for God’s forgiveness and healing.  I teach in the public schools, and Judge Moylan, we need healing and forgiveness.  God bless you for your stand.”

Another letter which moved me involved a pledge a man had made to pray at one of the abortion mills.  He mailed me a Xeroxed copy with a note saying, “I was unable to bring myself to commit to this.  After reading your story, I’m going to try.  Please pray I have the grace to keep it up.  I will pray for your children that they may be tremendously blessed, as I have been by your example.”

Certainly, all the high praise I received has been quite humbling, for I know that it was only by God’s grace that I did what I did.  I was helped by the fact that most of the arguments given against resigning were financial.  The phrase, “What does it profit a man to gain the whole world, and suffer the loss of his immortal soul” kept coming back to me.

Just as scientists and biologists agree that the baby in the womb is a human life from its beginning, I believe the legal destruction of these small human lives is against the most basic of their rights as set forth in the Declaration of Independence, which says that they are endowed by their Creator with an unalienable right to Life, Liberty, and the Pursuit of happiness – the right to life comes first, because it must.

It is a serious thing to make a mistake, but not to correct it is even more grave.

[Reprinted with the author’s permission from Human Life Review, Fall 1994]