One day before women’s reproductive rights diminished in America, Colorado’s appellate court expanded reproductive rights of men. Centennial State males possess cognizable rights to not have children, even after conception, according to the ruling In re: Marriage of Olsen

Craig Silverman

Mr. and Mrs. Olsen utilized in-vitro fertilization to have children. When they divorced, leftover Olsen frozen pre-embryos existed. Mr. Olsen wanted them destroyed. Mrs. Olsen, an observant Catholic, wanted them preserved and donated.

The Colorado Court of Appeals, citing Colorado’s commitment to reproductive autonomy, found Mr. Olsen’s right to not procreate must prevail over his ex-wife’s religious-based desires. Judging the validity of faith-based sentiments was specifically disapproved. Colorado courts can’t resolve religious debates. 

Mr. Olsen wisely retained accomplished Colorado appellate attorney Paige Mackey Murray. The daughter of famed “Voice of NASA,” Skip Mackey, Murray grew up in Cocoa Beach, Fla., before moving to Boulder and attending CU Law School. This savvy, successful working mother still lives and works beneath the Flatirons.

In her dynamic opening appellate brief, Murray informed the Olsen appellate court, “The outcome of this case will determine whether one person — based solely on that person’s religious moral belief in life at conception — will be allowed to force another to become a genetic parent against his or her will.” Murray’s arguments were winning, as reflected in the Court of Appeals’ detailed ruling.

When debating abortion, I’ve long utilized the hypothetical of a neighborhood fertility clinic fire. Given the opportunity to save an aged security guard overcome by smoke inhalation or frozen pre-embryos, I’d rescue the actual human being.

Critics of that choice exist, and are generally religious. Some faiths claim full “human being” status vests immediately following fertilization.  But I’ll go with common sense. Others may observe their own faith. Just don’t put it on us.

Leaving that fertility clinic security guard to suffer and possibly die seems cruel. Awful is the American reality allowing states like Mississippi to mandate female misery and increased maternal mortality, even for girls impregnated by rape. Over 1,000 girls under 15 seek abortions each year.

Smart Catholic women are vociferously objecting. U.S. Rep. Madeleine Dean, D-Pennsylvania, a LaSalle graduate and lawyer, stated: “What happened here under Dobbs, is we have a majority on the Court, a couple of them seated corruptly by an autocrat of a president, and it turns out, they’re theocrats. They’re actually not six Catholics, and I’m a Catholic, so I say this with respect, they are theocrats. . . . They want their faith to determine everyone else’s life.”

Catholic University graduate Maureen Dowd let her Irish show this weekend, lambasting America’s retreat to criminalizing abortion. Dowd is “stunned that Ireland and the United States have traded places. Ireland leaped into modernity, rejecting religious reactionaries’ insistence on controlling women’s bodies. America lurched backward, ruled by religious reactionaries’ insistence on controlling women’s bodies.”

Female bodies are obviously impacted by the Dobbs ruling. So is America’s beautiful body of common law, which has evolved intelligently and gradually. Fundamental due process rights melded gracefully with modern realities. Underlying constitutional concepts of personal autonomy and freedom usually prevailed, but not anymore. 

Perhaps we litigators should not complain. In the short-term, this is an attorney full-employment environment. Why not take a flyer on a case that flies in the face of precedent? “Remember the Dobbs decision!” will be the battle cry.  Who cares about precedent or stare decisis anyway?

We all should care. America depends on the rule of law. Originalist legal reasoning won’t work, and depends on who writes history. Facts can be deliberately distorted, as demonstrated by this U.S. Supreme Court. How can America’s original Founders, who deprived women of the franchise, determine female rights today? 

Zealous right-wing religious lawyers with robes have huge power now. America’s Constitution means whatever they say. Massive and prompt judicial reforms are necessary, yet improbable.

Appellate expert Murray derides the Dobbs ruling, telling me, “Case law builds on itself. Dobbs says it is limited to abortion, but they are limiting what substantive due process rights can be established, and that creates a precedent. Each case looks to previous cases. And it’s a way to slow down changes in the law; make sure the law moves very slowly rather than having these kinds of huge decisions that create such upheaval in society.”

Murray worries anti-procreation laws could emerge in post-Dobbs America. She explains how “innate civil liberties that surround not having children also protect the right to have children. At some point, we are going to have to talk about the impact this has on involuntary sterilization and eugenics because those constitutional privacy rights encompass that as well.”

Most Americans disapprove of Dobbs. Murray promises to be a “voice against Dobbs,” volunteering to assist poor women. She anticipates “there will probably be warrants for my arrest in a couple of states in a couple of years. This may be my last trip to Florida.” The Space Coast was her home. Not anymore.

Women and men from the Bible Belt, who support reproductive rights, will keep congregating in Colorado. We understand why they are coming here. Human beings love freedom.

Craig Silverman is a former Denver chief deputy DA who also has worked in the media for decades. Craig is columnist at large for The Colorado Sun. He is an active Colorado trial lawyer with Craig Silverman Law, LLC, and host of The Craig Silverman Show podcast.

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