At first glance, the main part of Amendment 79 seems pretty straightforward. It would add a new section 32 to Colorado’s Bill of Rights stating: “The right to abortion is hereby recognized. Government shall not deny, impede, or discriminate against the exercise of that right, including prohibiting health insurance coverage for abortion.”
Taxpayer funded abortions
We’ll return to that language later. The measure also repeals section 50 of article V. That section is titled, “Public funding of abortion forbidden.” This second bit tells us what the language about “health insurance coverage for abortion” is about: tax funding of abortion through government-provided insurance.
The measure’s legislative declaration makes this connection explicit. It says, “In 1984, Colorado adopted Amendment 3 which has had the unintended consequences of denying health insurance coverage for abortion services for state and local public employees.” I don’t think that outcome was unintended. Amendment 3 also prevents “use of health insurance coverage provided through medicaid for abortion services.”
So here is the basic moral question. Should someone who believes that abortion is murder or deeply morally wrong be forced to finance abortions? If we believe in freedom of conscience, it’s hard to see how the answer could be anything other than a resounding no.
But not so fast. What about all the people who help to fund government-issued health insurance who think abortion generally is okay? Don’t their preferences count?
One possible resolution to this tension is to let people declare whether they want any of their tax dollars going toward abortion. If someone says no, then their dollars are directed elsewhere. Of course this would be a shell-game solution, as government simply could direct other dollars toward the same end.
A more radical solution is for government to stop issuing health insurance. Why should government agencies offer their own insurance, when they could simply pay that money directly to employees, who could then buy private insurance? A similar argument pertains to Medicaid. If we’re going to have welfare, why not just pay poor people cash and let them pick a private insurance policy? We could even have a welfare-specific mandate that a recipient has to spend some of the money on a private policy. Then leave private insurers free to decide whether and in what context to cover abortion.
Let’s remember here that one can get health care without using insurance. I realize the concept strikes many people today as crazy, but people can—get this—just pay for health services. Shocking, I know. For example, recently I saw a medical specialist and opted to pay his office directly out of my Health Savings Account, without hassling with insurance. According to Planned Parenthood, an abortion typically costs a few hundred bucks, hardly a crisis-generating expense for most people, especially with private aid also available.
Democrats’ double standards
Again, Amendment 79 says that “government shall not deny, impede, or discriminate against the exercise of that right” to abortion. But is this language as tight as Democrats presume?
Compare the new language on abortion with the longstanding language on guns. Section 13 of the state’s bill of rights states, “The right of no person to keep and bear arms in defense of his home, person and property. . . shall be called in question. . . .”
Yet, despite this seemingly strong language, Democrats call into question the right to keep and own arms all over the place. For example, back in 2013, Democrats banned larger gun magazines. Will Democrats offer a similarly loose interpretation of the language about abortion? That was a rhetorical question; we all know the answer is no. Democrats will continue to say that Section 13 offers only weak protections of gun ownership, even as they say that the new section 32 offers very strong protections of abortion.
Likewise, Republicans will say that “shall not be infringed (from the federal Bill of Rights) and “shall [not] be called in question” mean, you know, shall not be infringed and shall not be called in question, even as they argue that Section 32 permits all sorts of regulations of abortion. A cynic might be tempted to think that partisans interpret a constitution based, not on consistent principles, but on the policy goals they aim to enact.
An absolute right?
Does Section 32 establish an absolute right to get an abortion, by any possible means, right up to the point of delivery? Hardly anyone thinks there is such an absolute right to abortion. I’m a very strong supporter of the ability to get an abortion, and even I think there are grounds for some late-term restrictions. One might say that Section 32 protects the right to abortion but that such a right does not extent to all possible abortions.
My guess, then, is that legislators and the courts will interpret Section 32 to mean something softer than what it apparently says. Government will continue to regulate who may offer abortions and in what conditions. My guess is that courts will throw out almost any Republican-led restrictions on abortion, such as waiting periods, propaganda mandates, clinic restrictions, and the like. (I mean, this is on the comical assumption that the Republican Party of Colorado ever can put itself back together into anything resembling a competent organization with members potentially capable of passing legislation.)
For hard-core opponents of abortion, Amendment 79 is a slam-dunk no. For supporters of abortion rights, the measure is more complicated than it may at first seem.
Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.
