Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Saturday, May 20, 2006

The Sad Truth About Fr. Maciel

Grant Gallicho, over at dotCommonweal, has said (here) that the following editorial "is well worth reading."  Having just read it, I concur.  Excerpts follow.  To read the whole editorial, click here:

National Cathiolic Reporter

May 26, 2006

The sad truth about Maciel

The decision by the Vatican in the case of Fr. Marciel Maciel Degollado, founder of the Legionaries of Christ, that he be restricted in his public ministry after being found guilty of multiple acts of sexual abuse spanning decades brings some resolution to a particularly disturbing chapter in recent church history.
. . .

Maciel was an imposing international figure who commanded intense loyalty, raised enormous sums of money, won the special favor of Pope John Paul II and other high Vatican officials, and indignantly protested his innocence until the evidence became overwhelming.

It would be difficult to overstate the significance of the lessons to be drawn from this episode.

One need only follow the path of the first accusers - the ridicule and vilification they encountered, the institutional scorn and derision they had to overcome to even begin to state their case - to understand the difficulty of bringing charges against a revered church leader. The church owes them a debt of gratitude.

The case illustrates, too, the long time it often takes for victims, some shattered in their childhood, to begin to deal with such deep wounds. Often they do so taking on the dual burdens of reestablishing their lives while raising the specter of extreme disorder and sickness at the highest levels of the community.

                                                      
                                                                                                                                                        
Read More
      Read nine years of NCR coverage of Fr. Marcial Maciel and the Legionaries of Christ: Archive of NCR stories about Fr. Marcial Maciel.
            

What has become clear in such cases is that the effects of these crimes can play out with severe damage over such a long period of time that it is difficult to see how justice can be achieved, for either the victim or the accused. The prospects of justice are further dimmed by the growing understanding that the abuse is most likely the result of illness, not criminal intent.

Those complexities seem to be understood widely among Catholics who have long turned the focus of their anger from individual acts of abuse to the deliberate concealment of sexual predators and protection of those guilty of harming children.

It is the cover-up, including the payment of huge sums early on to procure silence, that continues to infuriate Catholics who have no way to expect or demand accountability on the part of their leaders. The cover-up is the product of secrecy, privilege and a lack of accountability that are major elements of the clerical culture in which the sex abuse scandal flourished. While sexual abuse of children and cover-up of the crimes occurs widely throughout the general culture, that fact should provide little comfort to an institution that professes the Christian Gospel. What has made the scandal infinitely worse than it need be is not the fact that abuse occurs. That is, perhaps, an inevitability in any sizeable institution. It was made worse because officials either ignored or downplayed the claims of victims and went to great lengths in many cases to protect the abusers.

* * *

For all of the commendable achievements of Pope John Paul II, his blindness to this cancer within the church and his unwillingness until the last years of his long reign to understand the urgency of the problem will be seen as serious flaws of his tenure. His inaction sent signals that he both tolerated and encouraged the debilitating culture of deceit.

The case of Maciel, whose victims ranged from youngsters in his charge to young priests, is the most dramatic example of the late pope's failure. Vatican officials today explain that John Paul did not have the information with which to judge the case. That's the very point, however. One can only conclude he failed to listen to the victims and believed for far too long that the scandal was the malicious work of those who opposed the Legion because of its loyalty to him.

Faced with compelling evidence and repeated warnings, John Paul exhibited no sense of the need to investigate credible claims immediately. Instead, he lavished on Maciel the perks of privilege. He gave him a place of honor during some of his international travels, bestowed special benefits upon his order and even hailed him as "an efficacious guide to youth," a horrible and tragic misreading of reality.

The level of Maciel's deception and the gullibility of church officials is difficult to comprehend. Late last year, the Vatican's top official for religious orders, speaking of Maciel as he stepped down from leadership of the Legionaries, called him "the instrument chosen by God to carry out one of the great spiritual designs in the church of the 20th century."

Vatican Secretary of State Cardinal Angelo Sodano came to his friend Maciel's defense, hailing "the great work that you do."

That Maciel was able to dupe his order, donors and Vatican officials straight up to the pope so convincingly and for so long is further evidence that the hierarchical culture sometimes works overtime to shield itself and those it favors from hard truths.

The Maciel case reveals much about who in the community is listened to; about how isolated certain levels of the church can be from what is going on in local communities; about how blind officials have been to one of the most debilitating scandals to hit the church in centuries. We risk repeating a worn warning because we think it is important to the integrity and very life of the church. The sex abuse scandal is merely the most sensational and disturbing symptom of what happens when the model of priestly service offered by Christ, which the church at its best has realized for two millennia, is distorted into a system of secrecy, privilege, distance from the people and a lack of accountability to anything or anyone save the clerical culture itself.

Perhaps it is sign of a major breakthrough that the Congregation for the Doctrine of the Faith was able, finally, to deal honestly with this notorious case and risk the wrath of those who simply do not want to believe that such things happen.
. . .

[T]hen-Cardinal Joseph Ratzinger . . . finally took the time to begin reviewing briefs of the abuse cases from the United States, gradually becoming convinced that there was more to the claims of the victims than they first believed. Ratzinger, who initially shut down the probe of Maciel, then allowed the investigation to go forward, an investigation that involved interviewing witnesses on several continents and extensive questioning of victims. In the end, it was Pope Benedict XVI who signed off on the recommendation of those in the Congregation for the Doctrine of the Faith, who found Maciel guilty and advised that he be removed from active ministry.

For all of the missteps earlier on, the church ultimately got it right - and it must have required no small amount of courage to do so. We would have preferred a fuller accounting of the documentation and some comment from those who saw the files on Maciel and who privately say the evidence was overwhelming.

From the United States to Ireland, to England to Australia and New Zealand to Mexico and in various parts of Africa - in short, throughout much of the world - the specter of clerical sexual abuse of the vulnerable is an issue that cannot be ignored. More important, though, is the institutional cover-up of such abuse by the highest levels of church leadership. Pastors, bishops, archbishops and cardinals, on up to the pope, in one way or another all those levels have been involved in denying, covering up, revictimizing victims and disparaging those who have attempted to reveal the breadth and depth of the problem.

The decision on Maciel provides a chance to reverse that pattern, to stop blaming everyone else and the general culture and to look deeply at the culture within the church that allowed the scandal to persist, eroding the church's authority, credibility and moral standing in the world.

It is time for the church to provide answers for why and how such widespread deceit and denial occurred.
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Amnesty International and Abortion

Thanks to Richard Stith, MOJ-readers have learned about AI's misguided, objectionable proposal to endorse abortion rights (here).  There is an informative article on the proposal and the ensuing controversy in The Tablet, May 6, 2006, at 8-9:  Hugh O'Shaughnessy, "Conscience Under Fire."  Unfortunately, there seems to be no electronic copy to which to link.
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Tuesday, May 16, 2006

Clarification

I did not follow (but should have) Rob's links to the three policy positions of the Episcopal Diocese of New York (on abortion, marijuana, and school vouchers).  I misunderstood Rob's point.  (I'm sorry, Rob.)  Half of my penance:  being taken to the woodshed and spanked by Rick Garnett.

The point I made in my post--because of my misunderstanding of Rob's  point--was not about abortion, marijuana, or school vouchers.  It was about one issue only:  same-sex unions.

The other half of my penance:  Rick says I can't post to MOJ for seven days.  I'll have to find something else to do with my time.  (Is "The Da Vinci Code" worth seeing?)
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Homosexuality and the "Right/Left" Grid

Thanks to Rob for linking MOJ-readers to an excellent piece.

In his post, Rob refers sardonically to "a strangely perfect convergence between Christianity and lefty secular social policy."  As I read our social text, the right/left grid is not helpful in understanding the controversy over same-sex unions:  Many conservative Republicans are articulate supporters of the legal recognition of same-sex unions.  Nor is the religious/secular grid helpful in this context:  Some of the most profound statements in support of the legal recognition of same-sex unions are theological.

(Come to think of it, the right/left grid is not helpful in understanding the controversy over abortion either:  There are liberal democrats who are articulate proponents of a pro-life policy on abortion--even if, as Rick will be quick, and right, to remind us, they have been marginalized in their party.)

So I think that what Rob refers to as a "a strangely perfect convergence between Christianity and lefty secular social policy" is better described as a strangely perfect convergence between Christianity and just social policy.  Put that way, the convergence is not "strange" after all.  It's just what we should expect, later if not sooner.
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Monday, May 15, 2006

Prudential Judgment and Abortion Policy

Unless I misread him, Rick claims that there is no room for a reasonable difference in prudential judgments about whether early abortions--or, say, abortions in cases of rape--should be criminalized (here).   So, I wasn't just hallucinating that there is disagreement about whether there is room for a reasonable difference in prudential judgments.

Is there room for a reasonable difference in prudential judgments?  Rick (and many others) say no.  Cardinal Martini, John Langan SJ, Cathy Kaveny (and many others) say yes.  So I guess that Rick's response to Martini, Langan, Kaveny et al. is that "you're not merely wrong, you're unreasonable, because no one who accepts the Church's position on the immorality of abortion could reasonably decline to support the criminalization of early abortions.  And I, by contrast, am not merely right; my position is the only reasonable position."

Is Rick's position the only reasonable position?  Why might one who accepts the Church's position on the immorality of abortion decline to support the criminalization of early abortions (or the criminalization of abortions in cases of rape)?  John Langan's comments in the America article I've cited before respond to that question:

 [E]ven if we think that there is a very strong case for opposing abortion, we must acknowledge that public opinion remains deeply divided on the question. This does not by itself defeat the moral argument against abortion. Public opinion may well be wrong. It has been wrong in the past on such serious questions as slavery, religious toleration and segregation. It is still wrong on the subject of capital punishment. But continuing and intense public disagreement does underline how far we are from having a broad public consensus against the practice and how difficult it would be to enact and enforce a legal prohibition against it. In the absence of consensus, there are certain to be serious problems of enforcement, patterns of passionate resistance to the prohibition, failures to convict offenders and further threats to public order. . . .

[P]ro-life advocates need to recognize that while the philosophical arguments they make against abortion may persuade many honest people that abortion is indeed the taking of innocent human life, they are extremely unlikely to persuade the general public to accept an absolute and universal ban on abortion. Hard cases (conception as the result of rape or incest, fetuses with grave mental or physical handicaps, the likelihood of very negative consequences for the mother) will make a universal ban impossible to achieve. For that reason, some sort of compromise on the details of any prohibition of abortion is necessary if the prohibition is to be sustainable in a democratic society. Pro-life advocates may well regard compromise on this matter as regrettable; but we all have to live with many things we deplore.

[P]ro-life advocates must recognize that the pro-choice position, though gravely flawed, is held by many of its advocates as a matter of conscience. It would be naïve to think that all pro-choice advocates are moved solely or even primarily by conscience, but it would be arrogant to deny the role of conscience on the other side of this debate. Several things follow from this point. For one, enacting a prohibition on abortion would generate extensive civil disobedience (and perhaps some violence). It would require coercing the conscientious—not an appealing project in a pluralistic society. Furthermore, even if the conscience of pro-choice advocates is erroneous, it puts them under obligation. On grounds of religious liberty, Catholics should be very reluctant to apply coercion in this area. Catholics should also remember that we want and need to protect freedom of conscience for our members and our institutions in the face of government regulations and policies that would require the funding or the practice of abortion. It does not follow from this point that abortion is therefore right, or that the erroneous conscience of some puts others under an obligation to obey it and to act in error, or that there is no moral truth in these matters.

Now, Rick disagrees with Father Langan.  No doubt one may reasonably disagree with Father Langan.  The question under discussion is whether we should conclude, with Rick, that Father Langan's position is not merely wrong but unreasonable.

[John Langan, who is a Jesuit priest, is
 the Joseph Cardinal Bernardin Professor of Catholic Social Thought at Georgetown University, Washington, D.C.  His America article is based on a talk given at the conference, “Public Witness/Public Scandal: Faith, Politics, and Life Issues in the Catholic Church,” convened by Ave Maria Law School at the National Press Club in Washington, D.C., on Sept. 16, 2004.]
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Sunday, May 14, 2006

Reply to Rick

In a post yesterday, Rick wrote:  "I am perfectly happy to agree that responding legislatively to abortion in a just way would . . . involve 'prudential judgments,' about which reasonable people (including faithful Catholics) could disagree.  (I'd be surprised if anyone denied this.)"

Rick says he'd "be surprised if anyone denied this."  According to Rick's thinly veiled suggestion, I am seeing controversy where there is none.  Am I?  I don't think so.  Listen, for example, to Archbishop John Myers, "A Time for Honesty," Origins, May 20, 2004, at 1, 4-5:

That some Catholics, who claim to believe what the Church believes, are willing to allow others to continue direcrly to kill the innocent is a grave scandal. . . .  [W]ith abortion . . ., there can be no legitimate diversity of opinion. . . .  One should not permit unjust killing anymore than one should permit slave-holding, racist actions or other grave injustices. . . .  Obviously, recognizing the grave injustice of slavery requires one to ensure that no one suffers such degradation.  Similarly, recognizing that abortion is unjust killing requires one--in love and justice--to work to overcome the injustice.

The question, however, is whether "recognizing that abortion is unjust killing" requires one to support the criminalization of early abortions.  Archbishop Myers's position seems to be that the answer is yes and that there is no legitimate diversity of prudential judgments about the matter.

So, Rick, I don't think I'm seeing controversy where there is none.

On another issue:  Yes, Roe and Casey were wrongly decided.  I argue so myself in my most recent con law piece (here).

A final issue:  I read the piece about Robert Casey to which Rick provided a link.  Yes, Casey would vote against the sort of judges that George Bush has nominated to the Supreme Court--and that a successor Republican president would probably nominate to the Court.  But there is nothing in the piece to suggest that Casey would do this because those nominees might vote to overrule Roe and Casey.  I assume that Casey would do it for the same reason I would do it:  because those nominees adhere to a misguided judicial philosophy that  would lead them to oppose many other, constitutionally correct rulings, like Atkins v. Virginia, which held that the imposition of capital punishment on the mentally retarded is unconstitutional, or Roper v. Simmons, which held that the imposition of capital punishment on minors is unconstitutional.  I would support a nominee who would vote to overrule Roe and Casey but whose judicial philosophy was sufficiently nuanced that he/she would not also oppose cases like Atkins and Roper.  I have no reason to doubt that Robert Casey would also support such a nominee.  (Whether it is realistic to expect either party to bring forth such "nuanced" nominees is a separate question.  Our politics is so polarized--even degraded.)

I've committed myself in writing (here) to the twofold position that the Court should not rule that capital punishment violates the Eighth Amendment *and* that Atkins and Roper were rightly decided.  If Rick thinks my argument misfires, then I wish Rick would go beyond simply saying that he disagrees with me and point out to MOJ-readers precisely those places where (according to Rick) my argument--my Thayerian argument--misfires.
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Saturday, May 13, 2006

A Quick Response

What Cardinal Martini says in my post below is what I say--and, I think, what Cathy Kaveny (Notre Dame), John Langan, SJ (Georgetown), and many other Catholic thinkers say.

Let me be clear:  What we say does not leave any room for what John Kerry said and did in the last presidential election:  As I saw it, Kerry was essentially cheerleading for NARAL.

(Again, what the Catechism and Evangelium Vitae say leave no room for support for the death penalty in North Carolina or elsewhere in the United States (here).)

But what we say does leave room for a prudential judgment that the criminalization of  early abortions is not, all things considered, the best way to deal with the tragedy of abortion in our society.

What public policy with respect to abortion do I support?  I concur in Cathy's answer:  See M. Cathleen Kaveny, "Toward a Thomistic Perspective on Abortion and the Law in Contemporary America," 55 The Thomist 343 (1991).  I quote the most relevant passages of Cathy's essay in my book, Under God?  Religious Faith and Liberal Democracy (2003) at 117-19.

MOJ-readers should also take a look at John Langan, SJ, "Observations on Abortion and Politics," America, Oct. 25, 2004.  (The article is here.)  As Langan explains,

the enactment of any prohibition of abortion is not simply the enunciation of a moral truth; it is a political and legal act that is to be carried out in an arena where there are many conflicting points of view and interests and where there is widespread hostility to the pro-life position. There must be room for a variety of judgments about how best to deal with this zone of conflict, in which pro-life forces work at a considerable disadvantage. It is reasonable to think that there can be and will be divergent political judgments about how to improve the protection of unborn human life in these difficult circumstances. In such a complex political setting, political leaders are better suited to make these judgments than are bishops or theologians or intellectuals. The function of bishops, and more generally of the churches, is to bear witness to the moral truth that is at stake, not to determine what is the best legal and political resolution of the problem. . . .  It would be a brave bishop who would claim to know on theological grounds just when such compromises are acceptable or justifiable, and it would be a naïve voter who would follow his opinion on such a question.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Yes, Rick, the Dems have been in the grip of NARAL and the like.  I hope that's beginning to change.  (My own thinking on the morality of abortion has changed dramatically over the years.)   I'm rooting for Bob Casey over Rick Santorum.  You're rooting for Santorum.  We're both rooting for pro-life candidates, one a Democrat, the other a Republican.

(Maybe I shouldn't be too quick to concede that Santorum is a pro-life candidate:  Does he support the death penalty?)
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Friday, May 12, 2006

The Mother of All Ironies

This follows on my immediately preceding post (here).

It is often said that according to the magisterium:  (1) abortion is intrinsically immoral and there is no room for a difference in prudential judgments about the morality of abortion, but (2) capital punishment is not intrinsically immoral and there is room for a difference in prudential judgments about whether government may rely on a system of capital punishment.

This statement is seriously misleading.  The truth of the matter is that:  (1) as I said in my preceding post, there is no room for a difference in prudential judgments about the morality of capital punishment in North Carolina or in any other state in the United States, but (2) there is room for a difference in prudential judgments about whether using the criminal law to ban pre-viability abortions is, all things considered, the best way to deal with the tragedy of abortion.  Recall what Cardinal Martini said recently (as reported by John Allen in The Word from Rome on May 5, 2006):

On abortion, Martini firmly upheld the moral teaching of the church, but acknowledged the complexity of writing it into public policy.

“It seems to me difficult [to imagine] that, in situations like ours, the state would not distinguish between acts that are punishable in a penal fashion, and acts for which a penal solution doesn’t make sense,” he said. “That doesn’t mean a ‘license to kill,’ but that the state doesn’t intervene in every possible case. Its efforts should be to reduce the number of abortions, to impede them with every means possible (above all after a certain period from the beginning of the pregnancy), to reduce the causes of abortion, and to take precautions so that women who decide to take this step, especially during the period when it’s not illegal, do not suffer grave physical damage or have their lives placed at risk.”

Martini noted that the risk of serious physical injury is especially grave in the case of clandestine abortions, and hence said that, all things considered, Italy’s abortion law -- which permits abortion during the first trimester -- has had the positive effect of “contributing to the reduction and, eventually, elimination” of back-alley procedures.

I titled this post "The Mother of All Ironies".   During the next few election cycles, watch to see how many Catholic thinkers--Republican or otherwise--point out that although a Catholic legislator, in the exercise of his or her prudential judgment, may decline to support the criminalization of pre-viability abortion, he or she may not, according to magisterial teaching, decline to oppose the death penalty.
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A clarification for Steve Bainbridge and others concerning the Magisterium's position on capital punishment

In his post today (here), Steve writes:  "[I]'s not clear that involvement with the death penalty is cooperation with evil, given that the Church has not definitively ruled it out."

Steve's statement is, at best, misleading and, at worst, mistaken.

True, the Magisterium has not ruled out the death penalty in any and all imaginable circumstances.  But it has ruled it out--"definitively" so--in some circumstances, namely, where it is possible for government to "render[] one who has committed an offense incapable of doing harm without definitively taking away from him the possibility of redeeming himself" (section 2267 of the 1997 edition of the Catechism of the Catholic Church).

The Catechism goes on to say that "the cases in which the execution of the offender is an absolute necessity 'are ... practically nonexistent.'"  (Id., quoting John Paul II in Evangelium Vitae.)

Now, it would be preposterous to argue that the State of North Carolina lacks the ability to "render[] one who has committed an offense incapable of doing harm without definitively taking away from him the possibility of redeeming himself ..."  There is no room for a reasonable difference in prudential judgments about that.  (If there were, the Catechism and JPII would be mistaken in insisting that "the cases in which the execution of the offender is an absolute necessity 'are ... practically nonexistent.'")

So, Steve's misleading statement should be replaced with this:  It is clear that the Church has definitively ruled out the death penalty in the circumstances that obtain in North Carolina--and in every other state in the United States.
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Abortion

New York Times
May 12, 2006

Colombian Court Legalizes Some Abortions

By JUAN FORERO

GOTÁ, Colombia, May 11 — Colombia's highest court has legalized abortion under limited circumstances. The decision is expected to embolden women's rights groups across Latin America to use courts in their countries to try to roll back some of the world's most stringent abortion laws.

In a 5-to-3 decision handed down late Wednesday, the Constitutional Court overturned Colombia's complete ban on abortion and ruled that the procedure would be permitted when the life of a mother was in danger or the fetus was expected to die or in cases of rape or incest. Women's rights organizations in places as varied as Argentina and New York hailed the ruling.

"This is a triumph for Colombian and Latin American women," said Mónica Roa, a lawyer in Bogotá who brought the suit on the grounds that by banning abortion, Colombia was violating its own commitments to international human rights treaties ensuring a woman's right to life and health.

The court, explaining its decision Thursday night, said the life of a fetus could not be put ahead of the life of a mother and called the complete abortion ban "disproportionate" and "irrational."

Advocates of abortion rights say both arguments are applicable to other Latin American countries as well.

Ms. Roa's suit was backed financially by Women's Link Worldwide, a Madrid-based group for which she works.

But opponents in this heavily Roman Catholic region saw the decision as akin to legalizing murder. Cardinal Alfonso López Trujillo, Colombia's highest Catholic Church official, told RCN radio here that the decision was "an attack on human life."

"The depenalization of abortion is a judicial stupidity," Cardinal Trujillo said. "The Constitutional Court does not have the right to say there is or there is not a crime. This is a bad decision, the fruit of international pressures that disrespect many Colombians."

Colombia's conservative government, led by President Álvaro Uribe, has strongly supported the Catholic Church's position on abortion.

Women's rights groups and human rights organizations have been mounting challenges in Latin America in courts and on the streets to laws that in most cases permit abortion only when a woman has been raped or her life is in danger, according to the Center for Reproductive Rights, in New York. Abortion has been banned in Chile and El Salvador. In the region, it is readily available only in Cuba and a few English-speaking Caribbean nations.

The parliaments of some countries, like Argentina and Uruguay, have begun to debate proposals to loosen abortion laws. In two recent cases, international human rights commissions told Peru and Mexico that they had violated their own laws by not permitting two women — in Mexico, a rape victim, and in Peru, a teenager whose fetus was severely malformed — to receive abortions.

With Colombia's decision, several groups across Latin America that have been pressing for looser abortion laws see new opportunities to use the courts, many of which are changing and are seen as becoming more independent.

"This decision influences and makes one think that other countries will advance on this issue," Susana Chávez, director of the Center for the Promotion of Sexual and Reproductive Rights in Peru.

In Buenos Aires, Mabel Bianco, president of the Foundation for Studies and Research on Women, said the Colombia decision could propel plaintiffs to demand that governments adhere to the international treaties they signed requiring that they ensure a woman's right to health care.

"I think this decision will prompt countries in Latin America that have stringent legislation to reflect that abortion is not ideological, but a health care issue," Ms. Bianco said.

Groups advocating changing the laws argue that the abortion laws in Latin America are counterproductive. Latin America has a higher rate of abortion than even in Western European countries where abortion is legal and widely available.

Four million abortions, most of them illegal, take place in Latin America annually, the United Nations reports, and up to 5,000 women are believed to die each year from complications that arise from the procedure. At least 300,000 illegal abortions are believed to take place in Colombia each year.

The court's ruling will not be easy to put into effect, as health authorities ponder such thorny issues as how to confirm that a woman seeking an abortion was raped.

The Catholic Church hierarchy and some groups opposed to abortion vowed to fight on.

"We are calling for civil disobedience, so Colombians do not follow these practices," said José Galat, the rector of the Gran Colombia University. He has paid for full-page newspaper advertisements criticizing abortion rights advocates. "We're going to call for a referendum to let the people decide if abortion should be legal or not because the court cannot impose this."
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