WASHINGTON — Democratic wins across the country in last month’s election could put state laws that protect the unborn, religious freedom and other Catholic interests under threat of repeal, modification or court challenges.
Democrats seized the governor’s office or took the majority in the legislature, giving the party control of the whole government in five states: Colorado, Illinois, Maine, New Mexico and Nevada. “In states with newly elected Democrat governors, the left will seek to undermine existing laws, either by violating them or by repealing them,” said Quena Gonzalez, the director of state and local affairs for the Family Research Council.
In Kansas, Gov.-elect Laura Kelly has said that she will not enforce a newly passed law, the Child Welfare-Provider Inclusion Act, which protects faith-based adoption agencies who won’t place children with same-sex couples.
“We believe the Kansas law is sound, that the governor-elect’s bid to illegally discriminate would be successfully blocked by the courts, and that her hostility would help legislators in other states see the need to pass similar laws,” Gonzalez said.
One state that has already passed a similar law is Oklahoma. That puts that state also potentially in the crosshairs of groups like the Human Rights Campaign and the American Civil Liberties Union that fought its passage, according to Autumn Leva, the vice president of strategy for the Family Policy Alliance, which backed the law.
Other states that have enacted such laws include Virginia, Texas, South Dakota and Michigan. Those laws were a response to the closure of Catholic adoption agencies in cities like Boston and San Francisco because they would not place children with same-sex couples. However, the laws in Michigan and Texas are already facing court challenges. “That’s one area in particular where I think we’re seeing a lot of challenges,” said Matt Sharp, the senior counsel for the Alliance Defending Freedom.
Such lawsuits aren’t truly about allowing same-sex couples to adopt children, but reflect a broader “gay-rights” agenda, according to Emilie Kao, the director of the DeVos Center for Religion and Civil Society at the Heritage Foundation.
“People are trying to create a right to be affirmed, the right not to be offended. There’s not a single person in this country, LGBT or otherwise, who cannot adopt a child or foster a child,” Kao said, because there are other agencies that will serve “LGBT” couples.
Having multiple agencies, Kao says, is also essential to finding homes for some of the 100,000 children who are eligible for adoption. “Having a diversity of agencies is what is going to get the most children into the most families the most quickly. So we should be focusing on what is best for the children,” Kao said.
It also is about ensuring that birth moms have the freedom to put their children up for adoption with agencies who share their values. It’s just another way to support pregnant women in choosing life, according to Kao. “So it’s a pro-life issue as well as a pro-adoption issue,” she said.
Abortion itself will also be a key issue in state battles, especially amid growing fears on the left that there is a realistic chance that the current Supreme Court could overturn Roe v. Wade.
Two states — West Virginia and Alabama — passed pro-life amendments in November, but the unborn could be vulnerable in other states. Illinois has already passed a law declaring that if the Supreme Court overturns Roe v. Wade, abortion will remain legal in that state. Now, with pro-abortion Gov.-elect J.B. Pritzker, lawmakers could next take aim at the state’s parental-notification law, according to Robert Gilligan, the executive director of the Illinois Catholic Conference.
A recent turning point in state conflicts over abortion was the 2016 Supreme Court case Whole Woman's Health v. Hellerstedt, which struck down a Texas law that limited the kinds of doctors who work at abortion facilities and mandated that those clinics follow the same standards as ambulatory surgical centers. The court ruled that the law placed “an undue burden” on women’s right to an abortion.
The ruling has emboldened abortion activists who have pushed state laws — known as the Trust Women Act or Whole Women’s Health Act — that repeal existing pre-Roe protections for unborn children and their mothers, according to Ingrid Duran, the director of state legislation for the National Right to Life Committee.
“I think we’re going to see a lot of action in a lot of state legislatures,” Duran said.
In Nevada, a lawmaker has vowed to introduce a version of the Trust Women Act. Other states where pro-abortion groups could challenge pro-life laws, according to Duran, include: New York, Maryland, Virginia, Montana and Maine.
In New Mexico, Democratic lawmakers are expected to push an abortion-legalization law, according to Robert Godshall, a Republican state representative candidate from Albuquerque who narrowly lost his race last month. He noted that the Democrats who have taken office tend to be farther to the left than those of the past, meaning that they are more likely to be pro-abortion. “I really think that they will be successful,” Godshall said.
Even though the elections are over, Duran said, it is more important than ever that Catholics engage in upcoming legislative battles at the state level. “Catholics should definitely be involved with our state affiliate or their state Catholic conferences and figure out what legislation is moving,” Duran said. “I would encourage everyone to just find out what is going on in your state and be a voice. Be an advocate for the unborn.”
As with adoption, divisions over sexual morality are leading to conflicts over counseling services. So far, 11 states, including California and Illinois, have passed so-called conversion-therapy bans, which the Alliance Defending Freedom says limits the freedom of church ministries and Christian counselors.
That movement, in turn, has led at least one state so far — Tennessee — to pass a law stating that counselors will not be required to pursue a goal or outcome that conflicts with their religious beliefs. “I think we can expect to see challenges to laws like that going forward,” Sharp said.
Another potential area of vulnerability is school choice. In Illinois, Gilligan worries that the Democratic-controlled state government may try to end the state’s new tax-credit scholarship program, which yielded about 3,100 scholarships worth $13.7 million in 112 of the Archdiocese of Chicago’s schools, according to the Chicago Catholic.
School choice also faces an uncertain future in two other states, according to Leva: Maine, which has vouchers, and Nevada, which has education savings accounts. Both Maine and Nevada are among the five states where Democrats seized control of state government in the last election.
Fiscal issues can also have moral ramifications. Budget shortfalls in Illinois could lead state policymakers to look for new revenue sources in unusual areas. One possibility is legalizing marijuana and taxing it, Gilligan warns. The Church has opposed legalization. Not only is it morally problematic, but it also doesn’t make sense in fiscal terms, according to Gilligan.
Looking for funding through marijuana legalization, he says, is “like spooning water out of Lake Michigan. It’s just a trickle.”
Stephen Beale writes from Providence, Rhode Island.