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CO Democrats try to lock the door

Worried by the possibility that, God forbid, the people or the representatives might pass some law or other that would restrict either abortion or contraception and sexuality "information" (note the connection to schools' sex education programs), Colorado Democrats have proposed an extraordinarily broadly worded law attempting to outlaw prospectively any changes in these controversial areas in a direction they don't like. See here, here, here, and here.

They claim that the law would make no retrospective changes, such as being used to block the enforcement of the parental notification law, but nothing in the law's wording says that it has no retrospective consequences. On the contrary, it very easily could be interpreted so as to have such consequences.

In any event, the legislative scene on such issues is always in flux. The bill's sponsors have said openly that they wish to block the later passage of ultrasound laws such as have been passed in other states. Colorado has no waiting period for abortion. Its parental notification law doesn't say anything about parental consent. Or what about laws requiring that live-born infants be transported to a hospital? Then there's the matter of "sexuality information." If Colorado wanted to strengthen parental ability to prevent their children from being given (let's admit it) heavily sexualized, not to say vile, materials in the schools, or to require parents to give permission before their children receive birth control, this bill would block that. The bill's language quite pointedly says that "every individual" has a "right" to make all personal decisions about reproduction, which would prima facie apply to minors as well.

What we see again here is the extraordinary insecurity of leftists. On all their hot-button issues, they can never leave anything to be decided by the ordinary processes of legislative debate. They always have to put extra locks on. Roe v. Wade is a good example of such a lock, but now even that isn't enough. Pro-lifers are finding ways to do a little protecting of the unborn around the edges of Roe, at the state level. We can't have that, now! Time for more locks.

I don't think that this bill will pass, but it is instructive concerning the radicalism of the evil we face.

Comments (15)

Statutes like this are categorically unconstitutional, at least insofar as they concern the legislature. The legislature cannot prevent its successor legislatures from enacting laws except by amending the constitution. Some people, who aren't familiar with the "implied repeal" doctrine, or who have never heard of repealing clauses ("All laws or parts of laws in conflict herewith are hereby repealed.") think this sort of thing is appropriate. Other people, including, apparently, Chicago professor Eric Posner, a man about whom I have never discovered reason to say anything good, think this sort of thing is defensible for . . . some sort of reason. But the simple fact of the matter is that it's incompatible with basic principles of republican (let alone "democratic") government.

There even happens to be a publicly available Duke Law Review article on the topic, co-authored by, mirabile dictu, Erwin Chemerinsky. He's not someone I agree with* everyday.


* Caveat, I haven't read the whole piece, I'm just passing it along for informational purposes.

Thanks, Titus, very interesting. I wondered about that. How does that constitutionality question work at the state level? Would such laws be unconstitutional according to the federal constitution because of the clause in the federal constitution about "guaranteeing a republican form of government"? That seems to be your implication.

One article stated that it would be "merely symbolic," because a later CO legislature could always repeal _this_ law by a later enactment. But I think it would be likely to have an effect anyway. For one thing, if it can indeed be used retroactively (and I don't trust its sponsors as far as I could throw them on whether they hope it will be so used), that would happen right away. Secondly, it would definitely throw up a procedural and rhetorical barrier to later laws. The spin machine would be in full spin mode if a later legislature wanted to repeal it in order to enact some later legislation: "The legislature wants to take away the fundamental rights of the people of Colorado to reproductive freedom, previously enshrined in law, blah, blah."

Titus picks up on exactly what I noticed right off - the idiot writers of the bill would apparently be telling themselves not to do something. It's just bad legislating, and to that extent it certainly shows that whoever actually put the bill together doesn't know what the heck they are doing.

Such a provision wouldn't make the law unconstitutional of itself, it would just make that portion of the law of null effect: no legislature can bind a later legislature's ability to address the same issue with the same authority.

Secondly, it would definitely throw up a procedural and rhetorical barrier to later laws.

Any legislator worth tuppence would know how to skirt the procedural problem. As for rhetoric, there is no way to prevent stupid people from saying stupid things, and other stupid people from believing them. That's the unfortunate side of pushing for what's right. You just have to bull through the stupidity anyway.

EVERY INDIVIDUAL IS ENTITLED 11 TO MAKE REPRODUCTIVE HEALTH CARE DECISIONS FREE FROM 12 DISCRIMINATION, COERCION, OR VIOLENCE;

It would be fun if due to some inadvertence in the drafting process, the author didn't know something in state law or jurisprudence, that leads to a position that an unborn child during last trimester is considered "an individual" and therefore is entitled to make decisions "without violence". One doubts even liberals can be that dumb, but stranger things have happened. Whether you are going to be born is certainly a momentous reproductive decision on your part!

Actually, Tony, other people have pointed that out. By using phrases like "every individual," while the legislative intent is clearly to exclude unborn children and indeed to facilitate their being killed, this law implies that unborn children are not human individuals and attempts to put that opinion more or less explicitly into the "mouth" of the legislature.

It's just bad legislating, and to that extent it certainly shows that whoever actually put the bill together doesn't know what the heck they are doing.

Yes, and in fact it's part of a peculiar pattern you may have noticed on the Left, which is constant attempts to enact what amounts to constitutional amendments--through the courts, through regulation, and even through ordinary legislative action, as here--without ever actually amending the constitution. In short, it's an attempt to outlaw ordinary politics. It's another "the debate is over" moment. It's a sign that their patience with actual arguments it at an end.

Strategically, though, do they not know what they're doing? When they use the courts to lock the doors, of course they know what they are doing very well. And it works extremely well for them.

What about this kind of thing? Would it work to their advantage if passed? I agree that it's going to feel legally less binding to a later legislature than some court opinion that such-and-such a law is unconstitutional. But would it in fact make later good legislation significantly less likely? I think myself that it might.

How does that constitutionality question work at the state level? Would such laws be unconstitutional according to the federal constitution because of the clause in the federal constitution about "guaranteeing a republican form of government"? That seems to be your implication.

I don't know that anyone's ever litigated this under the republican-form-of-government clause, and I doubt the federal courts would be able to apply that clause if you put them in a paper bag with its proper interpretation. It would fall pursuant to the state-constitution version of Article I: every state has a constitutional provision vesting the legislative power in its legislature, and that connotes the power to make laws except as limited by the Constitution.

On a procedural level, Tony is right that the clause wouldn't---probably---render the entire act nugatory, but when a subsequent legislature attempts to introduce a bill "prohibited" by this statute, the statute won't actually stand in the way.

when a subsequent legislature attempts to introduce a bill "prohibited" by this statute, the statute won't actually stand in the way.

Insofar as laws and legal structures have objective meaning, I agree completely. Insofar as laws and legal structures have turned into a giant set of bluffs and head-games, I'm not so sure. Which is presumably why the bad guys are trying to pass it.

Then there's the retroactive issue. CO has a parental notification law on the books. Now, suppose that this "law" were to pass, and subsequently some minor girl is unable to get an abortion because of the parental notification statute. Her parents are notified and stop her from getting an abortion. Then the girl, helped by Planned Parenthood, brings suit in state court arguing that the parental notification statute should not have been applied to her because she was seeking an abortion subsequent to the passage of a law that said that every individual has a fundamental right to reproductive freedom, etc., etc., and that she as an "individual" was denied that right by the application of parental notification.

What would the CO state courts do? Would they take it, based on the text of the law itself, that the passage of this law implicitly repealed the prior parental notification statute, or would they point to statements in the media from lawmakers to argue that that was not the legislative intent? I'm going to say that question is up for grabs as a sheer prediction.

One could actually argue that the case for implicit repeal of earlier laws makes *more legal sense* than the case that this would place any objective restraint upon future legislatures. Implicit repeal, as Titus points out, is a known legislative concept and fits with the idea that the present legislature is enacting something *here and now*, whereas the present legislature's ability to restrain future legislatures from enacting laws is legally highly questionable in terms of a clause present in the state's own constitution. This point is of course the *exact opposite* of what the law's sponsors are claiming, which is that it is _not_ intended to repeal any earlier laws but _is_ intended to prevent future laws. That's a little freaky considering that probably at least some of those sponsors, if not all, are graduates of law school.

Lydia,

Archbishop Samuel Aquila of the Archdiocese of Denver has been outspoken about his fear that this will pass, both houses and the Governor are Democrats. The danger of passage is very real. Yesterday Archbishop Aquila led hundreds of people in prayer for defeat of the bill on the steps of the capitol. Immediately afterwards at the scheduled hearing, the Democratic majority postponed the hearing because one of their number was sick and they have only a one vote majority.

The bill itself is, to put it mildly, legally weird. Its actual probable effect if passed occupies a grey zone of legal conjecture. My thought is that I never yet knew a pro-abort lawmaker or lawyer who didn't have a purpose in what they did. They think they can use this for evil, or they wouldn't be trying to pass it. And all the conjectures as to how it could be used are bad news. So good for Archbishop Aquila. May we prevail against this thing.

At the Senate hearing the legislature's staff attorney said that in typical jurisprudence, past laws are not repealed by a bill unless explicitly stated in the bill. However, upon questioning he affirmed that any changes to existing laws or policies would be forbidden -- a significant hindrance to update policies to deal with new situations.

Other witnesses made the point that the existence of the law could scare local governments, school boards, etc. into changing their policies for fear of lawsuits, even if the legislators had reassurances that the law would not require these changes.

The symbolic impact of this law on the state bureaucracy is also something to remember.

Deeply happy that the bill was defeated, but it will be back.

Good to see you all on this, do have a happy Easter!

However, upon questioning he affirmed that any changes to existing laws or policies would be forbidden -- a significant hindrance to update policies to deal with new situations.

KJJ, I am not sure what that means. Does it mean that, for example, the existing law that limits teen abortions by requiring consent of a parent "cannot be changed", or that THIS law would forbid further amendments to itself so that future situations could not unseat this law's main thrust? Or something else? The first seems unlikely, as it would essentially mean the law was not allowed to affect anything currently in force, even if directly opposed to so-called reproductive rights. Or, maybe the guy is just lying through his teeth.

As Titus pointed out, it is legally unconstitutional under all state constitutions for a mere law, enacted by a present legislature, to prohibit future laws enacted by later legislatures. The state constitutions vest the power to make legislation in the current legislature. These Democrats pretending that they can "prohibit" later changes (in a direction they don't like) to existing policies are playing a giant constitutional game of bluff. As I said above, what it would be, then, is chiefly a *psychological* or *rhetorical* hindrance to later police, since as the *actual* legal situation is, legislature 2014 *cannot* "forbid" the actions of legislature 2016. They can only pretend to do so, and if some new legislation the lefties don't like in 2016 comes up, the media can join in freaking out about it and saying it is "forbidden."

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