In the state of Montana, there is a proposed constitutional amendment entitled CI-100 which defines personhood as beginning at fertilization. This constitutional initiative will be accompanied by a petition drive which will materialize in your neighborhoods and shopping malls in months ahead.

Why have the Montana Catholic Conference and the Montana Bishops opted not to support this initiative and disallow signature gathering in our parishes and Catholic institutions?

First of all we share and commend the initiative’s ultimate objective: to bring about an end to legal abortion. With our brother Bishops and the whole Church, we are committed to achieving full legal recognition of the unborn child’s right to life. In solidarity with the entire Church and others of good will, we seek to bring an end to all abortions, so that all unborn children will be protected in law and welcomed in life.

In evaluating CI-100, we have sought and carefully weighed valued opinions from pro-life groups, and our brother Bishops in Colorado, Michigan and Georgia, who have faced similar initiatives in their home states, as well as leaders from other faiths who have, like us, agonized over these initiatives. I have also thoroughly vetted the issue and this document with our Consulters/Presbyterate Council.

After very careful consideration, we have concluded that while we share the objective of CI-100, we cannot support the initiative. We hope the discussion below will help to explain our decision more fully.

Following Evangelium Vitae, the bishops’ Pastoral Plan for Pro-Life Activities calls for “a great campaign in support of life” on all fronts. We must pray, educate, advocate and care for human life in ever new and creative ways, including prayer for unforeseen opportunities to bring an end to abortion.

Currently the central obstacle to meaningful protection for unborn human life is the U.S. Supreme Court’s 1973 abortion decision, Roe v. Wade, and cases based on it, especially Planned Parenthood v. Casey (1992). Roe declared a “right” to abortion throughout the nine months of pregnancy for virtually any reason. It must be overturned if unborn children are again to enjoy legal protection.

But only the Supreme Court can overturn Roe. States have no power to overturn or reverse the Supreme Court’s interpretation of the U.S. Constitution. Currently, a majority of Supreme Court Justices supports Roe. The only other avenue for overturning Roe, apart from a U.S. Supreme Court decision reversing that decision, is through a federal constitutional amendment. For these reasons, we, like our brother Bishops, have long supported a Human Life Amendment to the U.S. Constitution to protect the lives of unborn children.

Under these circumstances, we do not believe CI-100, the initiative now underway in Montana will, if enacted, be given any legal effect, or have any practical effect in preventing or reducing the incidence of abortion in Montana. It is reasonably certain that lower courts, required to apply Roe, would immediately invalidate the initiative were it enacted.

Thus enjoined, the amendment would not stop a single abortion. If presented with a request to review a lower court ruling invalidating an initiative of this kind, the Supreme Court would most likely either decline to review the case, or else take it up to reaffirm the principles of Roe – perhaps to reaffirm them more forcefully than before, making our situation even worse.

Given that a majority of the Supreme Court Justices support Roe, concern has been expressed that a personhood amendment might be challenged by abortion rights advocates in an attempt by them to regain ground lost in the recent Gonzales v. Carhart (“Carhart II”) decision upholding a ban on partial-birth abortion. Of additional concern, some of the Justices have intimated that Roe might be re-established on “equal protection” grounds – an approach that could create an even more extreme situation, one in which it would be argued that government is required to fund and support abortion whenever it provides support for live birth. The possibility that a personhood amendment could lead to an even worse situation than we are currently presented with must be taken seriously.

In the end, CI-100 could tragically set back the pro-life cause and, in the meantime, divert valuable resources away from other, more constructive efforts to defend innocent human life in Montana.

The Supreme Court’s rulings in Casey and subsequent cases, however, while they do not allow laws banning abortion before viability, do open the door to a variety of pro-life legislative initiatives that can pave a new path, step by step, toward a culture of life and a legal framework supportive of life. Some laws of this kind have already been enacted in other states, with great success in reducing abortions and building respect for unborn life.

Acting on those opportunities will require faith, courage and strategic thinking on the part of pro-life advocates. This is a long-term project, but beginning the process requires concerted action here and now.

For these reasons, and as an alternative to the current citizen petition, we have directed the Montana Catholic Conference and those working to promote pro-life to investigate the feasibility of amending our State Constitution and passing legislation along the following lines:

The first such alternative is a state constitutional amendment stating that nothing in the state constitution creates a right to an abortion, that abortion shall be prohibited to the full extent permitted under the U.S. Constitution, and requiring the legislature to pass implementing legislation to carry out these provisions.

An amendment of this sort would immediately undo the “right” to abortion in Montana to the extent permitted under the Supreme Court’s interpretation of the U.S. Constitution. This has important and immediate value because, as many of you know, our own Montana Supreme Court has interpreted our State Constitution as creating an abortion right that is even broader than that recognized in Roe and Casey. For example, our State Supreme Court has held that Montana cannot require that persons performing an abortion be licensed as physicians – a holding that goes beyond the constraints that the U.S. Supreme Court has placed upon abortion regulation. In addition, such a state constitutional amendment would ensure that abortion is prohibited in Montana once Roe is overturned by the U.S. Supreme Court or superseded by a federal constitutional amendment.

In addition, we will also be considering various legislative efforts to move our State toward greater respect for human life within current federal constitutional limits. These include (1) establishing and funding pregnancy help centers that promote informed choice by offering alternatives to abortion, especially adoption; (2) providing supportive services for pregnant and parenting women, including low-income women and college students patterned after the federal “Pregnant Women Support Act”; (3) bolstering alternatives to abortion by increasing adoption services for women who wish to place their infants for adoption; and (4) requiring parental notification with judicial bypass when the woman seeking an abortion is under 18.

Legislative proposals like these have saved many lives. Children who would have died are alive today as a result of these incremental laws. The state “personhood amendment” approach, on the other hand, has not saved, and in current circumstances is not likely to save, a single life.

No one step along the way is the final destination. Some steps are more significant in their immediate impact than others. But every step we take in passing effective pro-life legislation will work together toward our common goal, paving the way for complete protection of human life from conception to natural death. We will combine these efforts in support of unborn life, to our ongoing efforts to abolish the death penalty, and to oppose current court actions which would allow physician-assisted suicide.

Some may assert that we lack the courage and conviction to fight the good fight, defending human life through a state constitutional initiative. Nothing could be further from the truth.

Having consulted widely, nationally, regionally and locally, we are concerned that a state initiative, while well intentioned, runs the considerable risk of unintentionally entrenching Roe v. Wade, thus further endangering the lives of the unborn. We have weighed the potential benefits and risks related to a state initiative, and believe that it will be subject to appeal in the federal court system. It is a risk to the unborn that we are unwilling to take.

Be assured we have given much consideration to this decision. We reiterate that while we share the objective of CI-100, and we commend the good faith of those who have proposed it, we believe the measures we have outlined above stand a more realistic chance of achieving that objective.

Having placed both competing and compelling opinions in the balance, we, the Catholic Bishops of Montana, will not support CI-100.


Published in The Montana Catholic, Vol. 24, No. 3, March 21, 2008.