COURT USE ONLY. Case Number: 2016SC112

of 30

Please download to get full document.

View again

All materials on our website are shared by users. If you have any questions about copyright issues, please report us to resolve them. We are always happy to assist you.
PDF
30 pages
0 downs
2 views
Share
Description
COLORADO SUPREME COURT Colorado State Judicial Building, Two East 14 th Avenue, Denver, CO COURT OF APPEALS, STATE OF COLORADO, Judges Terry, Bernard, and Rothenberg, Appeals Court Case No. 2014
Transcript
COLORADO SUPREME COURT Colorado State Judicial Building, Two East 14 th Avenue, Denver, CO COURT OF APPEALS, STATE OF COLORADO, Judges Terry, Bernard, and Rothenberg, Appeals Court Case No CA 1816 Appeal from District Court, Denver County, Colorado; The Honorable Andrew P. McCallin, Case No. 2013CV34544 Petitioner: Jane E. Norton v. Respondents: Rocky Mountain Planned Parenthood, Inc., a/k/a Planned Parenthood of the Rocky Mountains, Inc., a Colorado nonprofit corporation; John W. Hickenlooper, in his official capacity as Governor of the State of Colorado; Susan E. Birch, in her official capacity as Executive Director of the Colorado Department of Health Care Policy and Financing; and Larry Wolk, in his official capacity as Executive Director of the Colorado Department of Public Health & Environment Attorneys for Amici Curiae: DATE FILED: December 28, :48 PM FILING ID: 32C9A58699DD2 CASE NUMBER: 2016SC112 COURT USE ONLY Case Number: 2016SC112 David M. Hyams, Att. Reg. #42648 SDG Law LLC 3900 E. Mexico Ave., Ste. 300 Denver, CO BRIEF OF AMICI CURIAE COLORADO FAMILY ACTION, GENESIS FAMILY CHURCH, KINGDOM WAY MINISTRIES, SUMMIT MINISTRIES, AND CHRISTINA DARLINGTON IN SUPPORT OF PETITIONER JANE E. NORTON CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with C.A.R. 29 and C.A.R. 32, including all formatting requirements set forth in these rules. Specifically, the undersigned certifies that The amicus brief complies with the applicable word limit set forth in C.A.R. 29(d). It contains 4,748 words (does not exceed 4,750 words). The amicus brief complies with the content and form requirements set forth in C.A.R. 29(c). I acknowledge that my brief may be stricken if it fails to comply with any of the requirements of C.A.R. 29 and C.A.R. 32. /s/ David M. Hyams David M. Hyams ii TABLE OF CONTENTS CERTIFICATE OF COMPLIANCE....ii TABLE OF CONTENTS.iii TABLE OF AUTHORITIES.v STATEMENT OF INTEREST OF AMICI CURIAE 1 SUMMARY OF ARGUMENT.2 ARGUMENT.3 I. THE PROHIBITION ON USING PUBLIC FUNDS TO PAY FOR ABORTIONS HAS A LONG HISTORY AND REMAINS A POPULAR MEANS OF PROTECTING CONSCIENCE RIGHTS....3 A. Freedom of Conscience Is a Fundamental Right Affirmed by Our Nation s Founders...3 B. Freedom of Conscience Is a Fundamental Right Affirmed by the Supreme Court....5 C. Recognizing the Fundamental Right of Freedom of Conscience Demands the Prohibition on Funding Abortions with Tax Dollars...7 D. Freedom of Conscience Is a Fundamental Right Affirmed by Congress and State Legislatures Conscience clauses protect healthcare providers Funding restrictions protect taxpayers....9 iii 3. Colorado recognizes freedom of conscience as a right to be protected...11 E. The Majority of Americans, Regardless of Whether They Are Pro-life or Proabortion, Do Not Want Their Tax Dollars Funding Abortions II. THE RISK OF IMPROPER EXPENDITURE OF PUBLIC FUNDS IS A CLEAR AND PRESENT DANGER...16 A. Because the Lower Courts Sanctioned the Intentional Circumvention of the Amendment, Nothing Prevents Abortion Providers from Scamming the System...16 B. Colorado Tax Dollars Are Possibly Funding a Criminal Enterprise...19 CONCLUSION...25 CERTIFICATE OF SERVICE 27 iv TABLE OF AUTHORITIES Federal Cases Baird v. State Bar of Ariz., 401 U.S. 1 (1971)...11 Harris v. McRae, 48 U.S. 297 (1980)...15 Roe v. Wade, 410 U.S. 113 (1973)...13 Rust v. Sullivan, 500 U.S. 173 (1991)... 16, 23 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)...11 Welsh v. United States, 398 U.S. 333 (1970)...12 West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) 11 State Cases Dodge v. State Dep t of Social Servs., 657 P.2d 969, 972 n.1 (Colo. App. 1982)...15 Dolores Huerta Prepar. v. State Bd. of Ed., 215 P.3d 1229, 1237 (Colo. App. 2009)...19 McCallum Family L.L.C. v. Winger, 221 P.3d 69, 74 (Colo. App. 2009)...24 Taxpayers for Public Education v. Douglas County School Dist., 351 P.3d 461 (Colo. 2015)... passim Taxpayers for Public Education v. Douglas County School Dist., 356 P.3d 833 (Colo. App. 2013)...20 Federal Statutes 42 U.S.C State Statutues C.R.S v C.R.S (2)...19 C.R.S C.R.S C.R.S C.R.S Public Laws Pub. L. No , Regulations 3 C.F.R (2010)...16 Executive Orders Exec. Order No Federal Constitutional Provisions U.S. CONST. amend. I...9 State Constitutional Provisions Colo. Const., Art. II, 3, Colo. Const., Art. IX, 7, Miscellaneous A. Von Hagel and D. Mansbach, Reproductive Rights in the Age of Human Rights (2016)... 15, 16 vi Americans Support Abortion Restrictions, KNIGHTS OF COLUMBUS, Elizabeth Hernandez, Denver Post, Thomas Jefferson, Letter to Edward Dowse, Esq. (Apr. 19, 1803)... 11, 26, Notes on Virginia (1785)...10 James Madison, Memorial and Remonstrance Against Religious Assessments (1785)...10 Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2203 (2003) (quoting A Bill for Establishing Religious Freedom (1786))...10, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV (1990)...9, The Selective Funding Problem: Abortions and Religious Schools, 104 Harv. L. Rev. 989, (1991)...14 Myths and Facts on Taxpayer Funding for Abortion, AMERICANS UNITED FOR LIFE, News Release, Grassley Refers Planned Parenthood, Fetal Tissue Procurement Organizations to FBI, Justice Department for Investigation, Press Release, Select Panel Refers Numerous Entities for Further Investigation into Possible Violations of Law, THE ENERGY AND COMMERCE COMMITTEE...26 Tertullian, The Apology...17 The 2016 Election: Clinton vs. Trump Voters on American Health Care, POLITICO, The Didache...16 vii Thomas C. Berg, Free Exercise of Religion, in THE HERITAGE GUIDE TO THE CONSTITUTION 310 (2005)...9 Timothy L. Fan, Divine Heartbeat: Listening to God s Heartbeat for Preborn Children (God-centered Universe 2014)...17 UNITED STATES CONFERENCE OF CATHOLIC BISHOPS, viii STATEMENT OF INTEREST OF AMICI CURIAE Colorado Family Action ( CFA ) is a Colorado nonprofit corporation that represents Colorado taxpayers who seek to assure that religious freedom is secure, the sanctity of life is promoted, and marriage and the family are protected and promoted. CFA seeks to protect life in all forms, and thus to correct the court of appeals decision that essentially permits abortion providers to subsidize their trade with taxpayer funds. Genesis Family Church ( GFC ) is an evangelical Christian church in Westminster, Colorado, which places a high value on the history of Christian doctrine and practice, and especially as expressed in the structure of the nuclear family. As such, GFC has a keen interest in this case, since its taxpaying members deem it both their religious and civic duty to speak publicly on behalf of (otherwise defenseless) preborn children, and especially since Colorado s constitution prohibits the flow of taxpayer dollars to abortion providers. Kingdom Way Ministries ( KWM ) is a Colorado non-profit corporation based in Loveland, Colorado, whose mission includes equipping leaders in business to integrate their faith and Christ-centered leadership principles to transform their communities for the common good. KWM believes that tax dollars used to fund abortions is a violation of such principles and is a detriment to the communities of Colorado. 1 Summit Ministries ( Summit ) is a Colorado nonprofit that educates young people through various forums to champion a biblical worldview. In 1973, its founder, Dr. David Noebel, published The Slaughter of the Innocent, one of the first pro-life resources available after Roe v. Wade. Summit carries on Dr. Noebel s legacy through educational resources that advocate the sanctity of life and protection of the unborn. Christina Darlington is a Colorado citizen and taxpayer opposed to abortion and her tax dollars being used to fund the performance of any abortion in any capacity whatsoever. SUMMARY OF ARGUMENT The United States and Colorado have historically protected their citizens fundamental right to freedom of conscience. In the abortion context, this has taken the form of conscience clauses and funding restrictions. Article V, Section 50 of the Colorado Constitution (the Amendment ) is an instance of the latter. The district court and court of appeals opinions render the Amendment meaningless, as they effectively sanction the funding of the performance of induced abortions by allowing the Governor, the Department of Health Care Policy and Financing, and/or the Department of Public Health and Environment (the State Defendants ), in defiance of a directive issued by Petitioner (the CDPHE Directive ), to direct taxpayer dollars to Rocky Mountain Planned Parenthood, Inc. ( PP ) (the 2 Funding ), who in turn utilizes that money to subsidize the abortion activities of its alter ego, Planned Parenthood Rocky Mountains Services Corporation ( PP Services ). Forcing Amici to indirectly or directly fund the termination of preborn human beings violates their consciences, as they are deeply opposed to abortion. Accordingly, the court of appeals erred in interpreting Colo. Const. art. V, section 50 to bar the use of state funds to pay for the performance of any induced abortion only to the extent that the performance of an induced abortion is the purpose for which the state makes the payment. This Court should not permit a reading of the Amendment that rewards corporate shell games and does violence to the conscience rights it was designed to protect. Amici respectfully request the Court reverse the court of appeals. ARGUMENT I. THE PROHIBITION ON USING PUBLIC FUNDS TO PAY FOR ABORTIONS HAS A LONG HISTORY AND REMAINS A POPULAR MEANS OF PROTECTING CONSCIENCE RIGHTS. A. Freedom of Conscience Is a Fundamental Right Affirmed by Our Nation s Founders. The First Amendment guarantees that Congress shall make no law prohibiting the free exercise of religion. U.S. CONST. amend. I. The essence of that promise is the guarantee that the government cannot force a person to commit an act in violation of his or her religion. See generally Michael W. McConnell, 3 The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV (1990). The signers of the First Amendment were united in a desire to protect the liberty of conscience, which they considered to be a right given by God that was antecedent to the nation they were forming. See Thomas C. Berg, Free Exercise of Religion, in THE HERITAGE GUIDE TO THE CONSTITUTION 310 (2005). Thomas Jefferson was clear that freedom of conscience is not to be subordinate to the government: [O]ur rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. Jefferson, Notes on Virginia (1785). Likewise, James Madison, considered the Father of the Bill of Rights, considered freedom of conscience an unalienable right: The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. Madison, Memorial and Remonstrance Against Religious Assessments 15 (1785). According to the view taken by Jefferson and Madison... to compel a man to furnish contributions of money for the propagation of opinions which he 4 disbelieves is sinful and tyrannical. Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2203 (2003) (quoting A Bill for Establishing Religious Freedom (1786)). Indeed, liberty of conscience is in the warp and woof of our nation s history. Thus, forcing Colorado taxpayers to pay for life-ending procedures to which they are conscientiously opposed eviscerates one of the very purposes for which this nation was formed. As Thomas Jefferson charged us: [W]e are bound, you, I, every one, to make common cause, even with error itself, to maintain the common right of freedom of conscience. We ought with one heart and one hand hew down the daring and dangerous efforts of those who would seduce the public opinion to substitute itself into... tyranny over religious faith.... Jefferson, Letter to Edward Dowse, Esq. (Apr. 19, 1803) (emphasis added). B. Freedom of Conscience Is a Fundamental Right Affirmed by the Supreme Court. In recognition of its paramount importance, the U.S. Supreme Court has consistently ruled in favor of protecting the freedom of conscience. See, e.g., Baird v. State Bar of Ariz., 401 U.S. 1, 6 (1971) ( This conjunction of liberties is not peculiar to religious activity and institutions alone. The First Amendment gives freedom of mind the same security as freedom of conscience. ); Tinker v. 5 Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 n.2 (1969) (referencing constitutionally protected freedom of conscience ). In West Virginia State Board of Education v. Barnette, the Supreme Court stated: If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.... Barnette, 319 U.S. 624, 642 (1943). [F]reedom to differ is not limited to things that do not matter much.... The test of its substance is the right to differ as to things that touch the heart of the existing order. Id. Barnette has been affirmed repeatedly, including in Planned Parenthood v. Casey, 505 U.S. 833 (1992), where the Supreme Court stated: It is conventional constitutional doctrine that where reasonable people disagree the government can adopt one position or the other. That theorem, however, assumes a state of affairs in which the choice does not intrude upon a protected liberty. Thus, while some people might disagree about whether or not the flag should be saluted, or disagree about the proposition that it may not be defiled, we have ruled that a State may not compel or enforce one view or the other. Id. at 851 (citing Barnette, 319 U.S. 624) (citations omitted) (emphasis added). The Supreme Court has also protected conscientious objectors. See Welsh v. United States, 398 U.S. 333, 344 (1970) (extending draft exemptions to all those whose consciences, spurred by deeply held moral, ethical, or religious 6 beliefs, would give them no rest or peace if they allowed themselves to become part of an instrument of war. ). The Welsh court noted a statement by Mr. Welsh, the conscientious objector, that has significance here: Id. at 343. I believe that human life is valuable in and of itself; in its living; therefore I will not injure or kill another human being.... I cannot, therefore conscientiously comply with the Government s insistence that I assume duties which I feel are immoral and totally repugnant. Like Welsh, Amici believe that human life is valuable at all stages and in all situations, and that elective abortion is murder and a sin against God. Being forced to fund procedures that terminate a prenatal human is just as objectionable as being forced participate in the termination of postnatal humans in war. C. Recognizing the Fundamental Right of Freedom of Conscience Demands the Prohibition on Funding Abortions with Tax Dollars. In Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court based its holding on a woman s constitutional right to privacy. Under that rationale, the government is required to leave all aspects of the decision about abortion in private hands. It follows logically that the government is permitted indeed, it may even be required to refuse to fund abortions. Roe was not, after all, an affirmation of the proposition that abortion is morally unobjectionable. It was an affirmation that the question of the morality of abortion is deeply contested and that the government should not resolve the issue. *** For those who consider abortion to be murder, it is sinful and 7 tyrannical to require them to participate in it with their tax dollars. *** Therefore, as in the case of government funding of religion, the privacy-separation rationale provides ample justification for the government's refusal to fund abortions. When the decisions are private, they should be left to the institutions of private choice. The public, which includes conscientious opponents of religion and abortion, should not be forced to pay for either. Michael W. McConnell, The Selective Funding Problem: Abortions and Religious Schools, 104 Harv. L. Rev. 989, (1991) (citations omitted). D. Freedom of Conscience Is a Fundamental Right Affirmed by Congress and State Legislatures. Cognizant of the deeply held convictions regarding abortion, Congress has passed measures expressing Americans commitment to protecting their freedom of conscience. These measures protect health care providers who oppose abortions and taxpayers who oppose their tax dollars being used to fund abortions. 1. Conscience clauses protect healthcare providers. Following Roe v. Wade, in 1973, Congress passed the first of the Church Amendments, see 42 U.S.C , which protect healthcare providers from discrimination by recipients of funds from the Department of Health and Human Services on the basis of their religious or moral objection to performing or participating in abortions or any lawful health service or research activity. Many similar conscience provisions related to federal funding have been passed over 8 the last 45 years. See, e.g., UNITED STATES CONFERENCE OF CATHOLIC BISHOPS (Dec ), (compiling federal conscience protections). States have adopted similar provisions. To date, 90% of all states include conscience clause protections for medical professionals involved in abortion, and 26% of all states have protection for pharmacists and health professionals who object to the provision of contraceptives. A. Von Hagel and D. Mansbach, Reproductive Rights in the Age of Human Rights, 142, 150 (2016). 2. Funding restrictions protect taxpayers. The second type of conscience protection prohibits using public funds to pay for abortions, such as the funding rider commonly known as the Hyde Amendment, which, with some limited exceptions, prohibits federal spending on abortion. See, e.g., Pub. L. No , 209; see also Dodge v. State Dep t of Social Servs., 657 P.2d 969, 972 n.1 (Colo. App. 1982) (discussing same). Since its passage in 1976, the U.S. Supreme Court has upheld the Hyde Amendment, see Harris v. McRae, 48 U.S. 297 (1980), and it has been added to appropriations bills annually. Funding restrictions have also applied to international aid. In 1973, Congress passed the Helms Amendment, which prohibits aid to international organizations that counsel for, refer, or provide abortions. See Von Hagel & Mansbach, at The executive branch also supports funding restrictions. In 1984, President Reagan issued an executive order prohibiting funding for nonprofit and international organizations that use segregated, non-us funds to provide any abortion-related service, including counseling, referral, or the procedure itself. Id. In 2010, President Obama issued an executive order that adopts funding restrictions from the Stupak-Pitts Amendment for the Affordable Care Act. See Exec. Order No , 3 C.F.R (2010). States have also implemented this protection. To date, 32 states and the District of Columbia provide funding for abortion for women on Medicaid only in cases of rape, incest, and when the life of the mother is at stake.... Von Hagel & Mansbach, at 152. These state-level measures pass constitutional muster, see Rust v. Sullivan, 500 U.S. 173 (1991) (states may engage in unequal subsidization of abortion and other medical services to encourage alternative activity deemed in the public interest), and are predicated on the assertion that the public should not pay for services such as abortion to which they are opposed. V
Related Search
Advertisements
Similar documents
View more...
Advertisements
We Need Your Support
Thank you for visiting our website and your interest in our free products and services. We are nonprofit website to share and download documents. To the running of this website, we need your help to support us.

Thanks to everyone for your continued support.

No, Thanks