Clinical notes: Gonzalez v. Carhart

The day after the Supreme Court upheld the federal partial birth abortion ban by a 5-4 vote, the pseudonymous “Diogenes” offered a rather chilling commentary on the Catholic World News Web site:

“In her angry dissent in Gonzalez v. Carhart, (Justice) Ginsburg writes that the majority decision ‘…cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court — and with increasing comprehension of its centrality to women’s lives.’ Now imagine you’re speaking to an anthropologist who has just returned from a previously undiscovered primitive tribal community on a remote island in the South Pacific. If he reports that the ability to bear children is a central factor in the lives of the tribe’s women, you might figure that you’d met another one of those remarkable social scientists who has found a way to earn a living by saying the blatantly obvious. But if he told you that the right to kill their own children was essential to these women, you’d have to conclude that the island is a terrible place, populated by bloodthirsty pagan savages, and any sane traveler should stay away.”

Yet that seems to be precisely what Justice Ruth Bader Ginsburg was asserting: that the legal right to kill their offspring is “central” to the lives of American women. Not good.

The anti-Catholic bigots quickly exposed their hand in the wake of Gonzalez v. Carhart. The morning after the decision was handed down, Philadelphia Inquirer cartoonist Tony Auth depicted nine Supreme Court justices behind the bench, five of them wearing miters. University of Chicago law professor Geoffrey Stone noted in a blog posting that “[a]ll five justices in the majority are Catholic” and charged that the papist quintet had “failed to respect the fundamental difference between religious belief and morality.” About which my colleague, Edward Whelan, made two telling observations:

(1) It is absurd on many levels to suggest that Chief Justice Roberts and Justices Kennedy, Scalia, Thomas, and Alito were imposing their religious beliefs on the nation. Rather, Whelan wrote, “they were deferring to the entirely reasonable moral judgments of the American people, manifested through bipartisan majorities in Congress.” How is it an imposition of religious belief to uphold the constitutionality of a law democratically enacted with bipartisan support? Were all the members of the Senate and the House of Representatives who voted to ban partial birth abortion imposing Catholic dogma on the republic? Please.

(2) The legal and historical facts of the matter, Whelan continued, are that the four dissenting justices in Gonzalez v. Carhart — Ginsburg, Stevens, Souter, and Breyer — “have a consistent record of misconstruing the Constitution to impose their own substantive preferences” — which is to say, their preferred policy outcomes, like an unrestricted abortion license.

Thus the attempt to defend the constitutionally indefensible (i.e., Roe v. Wade) continues to unhinge prominent legal scholars like Geoffrey Stone. To suggest that Roe can only be opposed on grounds of religious dogma is to betray an ignorance one would prefer not to associate with faculty members of a distinguished law school: an ignorance of both elementary embryology (the product of human conception is a human being) and the first principles of justice (do no harm to the innocent). Like Justice Ginsburg’s assertion of what’s “central” to women’s lives, this intellectual bewitchment bodes ill on many fronts.

Senate Majority Leader Harry Reid (D-NV), who had voted for the partial birth abortion ban, criticized Justice Samuel Alito for upholding the ban, which suggested a certain, er, senatorial inconsistency. But perhaps the truer consistency here is the consistency of political expediency, for Senator Reid knows that the pro-abortion lobby, a crucial component of Democratic fund-raising, will brook no dissent from its extremism. This puts Democrats who may have qualms about infanticide (as Senator Reid evidently once did) in a very tight box.

A smart Democratic presidential candidate would embrace the Court’s decision as the beginning of a new, rational consideration of the abortion issue in American public life. As things stand now, Democratic candidates are expected to defend infanticide. That’s not a task the more thoughtful of them are likely to welcome.

COMING UP: Colorado Catholic Conference 2021 Legislative Recap

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On June 8, the First Regular Session of the 73rd General Assembly adjourned. Over 600 bills were introduced this session. Policy primarily focused on transportation, agriculture, healthcare, fiscal policy, and the state budget. However, the legislature also considered and passed many bills that could impact the Catholic Church in Colorado.  

Some bills that were passed will uphold Catholic social teaching and protect the poor and vulnerable of our society while others pose potentially harmful consequences to the Catholic Church, its affiliated organizations, and Colorado citizens who wish to practice their well-founded convictions. There were also many bills that were considered by the legislature that did not pass, including two bills that would have upheld the sanctity of life and two that would have expanded education opportunity for K-12 students.  

The Colorado Catholic Conference (CCC), as the united voice of the four Colorado bishops, advocated for Catholic values at the Capitol and ensured that the Church’s voice was heard in the shaping of policy.  

Below is a recap of the CCC’s 19 priority bills from the 2021 legislative session. For a full list of the legislation the Conference worked on, please visit: https://www.cocatholicconference.org/2021-legislative-bills-analysis/  

For regular updates and other information, please sign-up for the CCC legislative network here.  

Six bills the CCC supported that were either passed or enacted

Note: Passed means the bill was approved by both chambers of the legislature and is pending the governor’s signature as of June 9, 2021. Enacted means the bill was signed by the governor and became law.  

HB 21-1011 Multilingual Ballot Access for Voters – Passed  
If enacted, counties where either 2,000 adults or 2.5% of the adult population primarily speak a language other than English will be required to provide a ballot in that language. 

HB 21-1075 Replace The Term Illegal Alien – Enacted 
With the enactment of HB 1075, the term “illegal alien” was replaced with the term “worker without authorization” as it relates to public contracts for services.  

SB 21-027 Emergency Supplies for Colorado Babies and Families – Passed  
If enacted, the state government will allocate much-needed funding for nonprofit organizations to provide diapers and other childcare necessities to families in need, including Catholic Charities.  

SB 21-077 Remove Lawful Presence Verification Credentialing – Enacted    
With the enactment of SB 77, verification of lawful presence will no longer be required for any applicant for a license, certificate, or registration, particularly in the job fields of education and childcare.  

SB 21-146 Improve Prison Release Outcomes – Passed  
If enacted, SB 146 will establish practices that ease the transition back into society for formerly incarcerated persons.  

SB 21-158 Increase Medical Providers for Senior Citizens – Passed  
If enacted, SB 158 will allocate more funding for senior citizen care, which is currently understaffed and underfunded.  

Eight bills the CCC opposed that were passed 


HB 21-1072 Equal Access Services For Out-of-home Placements – Enacted 
With the enactment of HB 1072, Colorado law now prohibits organizations that receive state funding for placing children with adoptive or foster parents from discriminating on, among other things, the basis of sex, sexual orientation, gender identity, gender expression, or marital status. This new law will likely to be impacted by the imminent Fulton v. City of Philadelphia U.S. Supreme Court decision. 

HB 21-1108 Gender Identity Expression Anti-Discrimination – Enacted 
With the enactment of HB 1108, “sexual orientation,” “gender identity,” and “gender expression” are now recognized as protected classes in Colorado nondiscrimination code. This may have serious religious liberty implications for individuals and organizations that wish to practice their well-founded convictions on marriage and human sexuality. 

SB21-006 Human Remains Natural Reduction Soil – Enacted 
With the enactment of SB 006, human remains can now be converted to soil using a container that accelerates the process of biological decomposition, also known as “natural reduction.” 

SB 21-009 Reproductive Health Care Program – Passed 
If enacted, SB 009 will create a taxpayer funded state program to increase access to contraceptives.  

SB 21-016 Protecting Preventive Health Care Coverage – Passed 
If enacted, the definition of “family planning services” and “family planning-related services” will not be clearly defined in law and could potentially include abortion. Furthermore, SB 16 removes the requirement that a provider obtain parental consent before providing family planning services to a minor.  

SB 21-025 Family Planning Services for Eligible Individuals– Passed 
If enacted, SB 025 low-income women to be given state-funded contraception, “preventing, delaying, or planning pregnancy” services, which includes cessation services and sterilization services.  

SB 21-142 Health Care Access in Cases of Rape or Incest– Enacted  
The enactment of SB 142 removes the requirement that, if public funds are being used, a physician must perform an abortion at a hospital, and instead allows for abortions to be performed by any “licensed provider.”   

SB21-193 Protection of Pregnant People in Perinatal Period– Passed 
If enacted, SB 193 will eliminate an important protection in Colorado law for a preborn and viable baby when a woman is on life support.  

Five bills the CCC supported that failed  

HB21-1017 Protect Human Life at Conception – Failed 
HB 1017 would have prohibited terminating the life of an unborn child and made it a violation a class 1 felony.  

HB 21-1080 Nonpublic Education and COVID-19 Relief Act – Failed 
HB 1080 would have established a private school and home-based education income tax credit for families who either enroll their child in private school or educate their child at home, thereby expanding education opportunities for families during and after the pandemic.  

HB 21-1183 Induced Termination of Pregnancy State Registrar – Failed 
HB 1183 would have required health-care providers that perform abortions to report specified information concerning the women who obtain the procedure to the state registrar of vital statistics, thereby increasing transparency in the abortion industry.   

HB 21-1191 Prohibit Discrimination COVID-19 Vaccine Status– Failed  
HB 1191 would have prevented individuals from being coerced to take the COVID-19 vaccine by either the state or by employers.  

HB 21-1210 Modifications to Qualified State Tuition Programs – Failed 
HB 1210 would have allowed families to use some of their private 529 savings account funds for private K-12 school tuition for their children, including at Catholic schools.   

One bill the CCC opposed that failed 

SB 21-031 Limits on Governmental Responses to Protests– Failed 
SB 031 would have made it more difficult for law enforcement to protect innocent lives when protests turn violent.  

Two bills the CCC was in an “Amend” position that passed  

SB 21-073 Civil Action Statute of Limitations Sexual Assault – Enacted  
With the enactment of SB 073, the statute of limitations on bringing a civil claim based on sexual misconduct will be removed as of January 1, 2022. Under this law, victims of sexual abuse can pursue a civil cause of action if the statute of limitations has not expired, the abuse happened in Colorado, and the abuse could be considered a felony or Class 1 misdemeanor if it was a criminal case. 

SB 21-088 Child Sexual Abuse Accountability Act– Passed  
If enacted, SB 88 will allow victims of childhood sexual abuse to sue public and private institutions for abuse that occurred between 1960-2022. Victims would have three years to bring a historical claim, starting from January 1, 2022. Claims brought during this window would be capped at $387,000 for public institutions and at $500,000 for private institutions, with the ability of a judge to double the damages depending on how the private institution handled the situation. Despite unanswered constitutional concerns regarding SB 88, the Colorado Catholic dioceses will also continue to offer opportunities for survivors of childhood sexual abuse to receive support in a non-litigious setting.   

While the legislature has adjourned the 2021 legislative session, there is still the possibility that they will reconvene later this year. To stay up-to-date on Colorado legislative issues and their impact on the Catholic Church in Colorado, be sure to sign up for the CCC legislative network HERE.