May 4, 2023
Since the U.S. Supreme Court allowed states to regulate abortion last year, laws related to abortion have become more prominent, not less. Some states, like Utah, began to enforce significant protections of unborn children while others have enacted laws to increase access to abortion by providing state funding for abortions.
Utah’s neighbor, Colorado, has similarly been active in enacting abortion legislation. In April, their governor signed bills that would:
- prevent state officials from cooperating with lawsuits in other states involving abortion-related legal violations in those states,
- prohibit local municipalities from using zoning and licensing powers to keep out abortion clinics,
- provide abortion information to pregnant prisoners,
- require large employers to offer no-cost insurance coverage for abortions, and
- prohibit health care providers from providing or even offering “abortion pill reversal” for at least five months.
The last of these provisions, however, has raised religious freedom concerns. Abortion pill reversal involves giving a woman the natural hormone progesterone to counteract the abortion-inducing drug mifepristone. An interesting fact related to the case is that progesterone treatment is prescribed to mothers in various medical scenarios, and Colorado’s law leaves those procedures untouched. For instance, the hormone is sometimes used when a miscarriage is likely so that the pregnancy can continue and that use of progesterone treatment remains legal under the new law. In other words, Colorado is not banning the use of medication because a drug is inherently unsafe for patients. Rather, they are simply targeting its use in the case of counteracting an abortion.
The specific procedure banned by the state is employed when a pregnant woman has willingly or unwillingly (like when it is given to her surreptitiously) taken abortion-causing drugs. The law treats this procedure as “unprofessional conduct” subject to state discipline unless the Colorado Medical Board, State Board of Pharmacy and the State Board of Nursing decide by October 1 of this year that the procedure is accepted medical practice.
This creates a potential problem for a health care provider called Bella Health, an “an independent, faith-based Catholic medical center” operating in Colorado. Founded by a mother and daughter team of nurse practitioners, Bella operates consistent with the teachings of the Catholic Church about the sanctity of life. They explain: “Consistent with its commitment to honor the dignity of their patients and provide life-affirming health care, Bella offers progesterone therapy to all pregnant women experiencing threatened miscarriage—including women who have taken the first abortion pill and then choose to continue their pregnancies.”
Given the conflict, Bella Health, represented by the religious liberty law firm Becket, sued Colorado. They argued the law targeted “religious healthcare clinics that offer women care in accordance with their faith.” The court initially enjoined the law from going into effect and set additional hearings, but the state of Colorado then decided to pull back. Perhaps realizing the difficulty of defending its law, Colorado agreed to halt enforcement of this portion of its law until the state boards determine whether to declare the abortion reversal procedure a “generally accepted standard of practice.”
Thus, though Colorado’s backtracking is a positive short-term outcome, it may not last. If the medical boards announce that they oppose the use of progesterone to save an unborn child at risk because of intentional or unintentional use of abortion drugs, Bella Health and other religiously motivated service providers will have to seek vindication of their rights in continued litigation.
However the case proceeds, it can serve as a cautionary tale for state legislators. When trying to advance policy goals, legislators need to also consider constitutional constraints. However worthy an aim may seem, it cannot exceed the constitutional limits on legislative authority. This can be particularly challenging when the underlying topic is as fraught with controversy and emotion as abortion.
These types of charged issues, though, are the most important to approach wisely. A simple religious exemption to Colorado’s policy or even forbearance in legislating in an unsettled area could have avoided litigation and backtracking by the state. Sensitivity to religious groups and motives can prevent these scenarios and the distrust and confusion they engender.
Insights: analysis, research, and informed commentary from Sutherland experts. For elected officials and public policy professionals.
- Colorado’s governor signed into law a bill that bans abortion-reversal pill
- Opponents raise religious freedom concerns
- Following the court’s block of the law, CO halts enforcement
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