Colorado abortion-rights advocates so far have succeeded in their efforts to ban a controversial experimental abortion reversal treatment, and now they’re looking ahead to next year’s ballot to further protect the right to an abortion in the state.

The state’s Democratic legislative majorities have secured Colorado’s protection of abortion rights in law, but reproductive rights advocates want to cement it in the state constitution so it’s harder for future legislatures to change. The reason that prompted Colorado lawmakers to pass the 2022 abortion-rights law — the anticipated overturning of Roe v. Wade a few months later — is the same one that’s keeping hope alive among anti-abortion activists that they can reverse the tide, as more conservative states enact restrictions.

Colorado’s advocacy groups have filed initial documents for a November 2024 ballot initiative aimed at codifying the right to abortion in the state constitution and ending the state’s public funding ban. That ban prohibits state-provided insurance coverage of abortions. A Legislative Council hearing has been set for Wednesday.

“We know so many things are going on, but I will tell you that the state of access to reproductive health care across the country really remains a crisis,” said Karen Middleton, president of Cobalt, a pro-abortion access nonprofit. “It’s still important to pay attention to and follow what your elected leaders are doing and the follow-up ballot measures as we go into 2024.”

The U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision in June 2022 reversed the right to an abortion that long had been guaranteed by Roe v. Wade, and it left the legality of abortion in the hands of individual states. Across the country, conservative lawmakers began instituting bans and restrictions on abortion, while more Democratic-leaning states, like Colorado, worked to protect access.

Since enacting last year’s Reproductive Health Equity Act, Colorado lawmakers have passed a series of bills protecting those who seek abortions in Colorado, including from other states, as well as abortion providers.

As advocates ready their constitutional measure, another possible 2024 ballot question will get a title board hearing Wednesday. This one comes from anti-abortion activists who want to ask voters to ban abortion — something the state’s voters repeatedly have rejected.

But proponent Faye Barnhart expressed hope for a different outcome this time.

“We’ve obviously been headed in the wrong direction for Colorado,” she said, “and we are asking, particularly people who do believe in our creator — believe in creator God — to repent and to have faith, and to turn around and do the right thing for Colorado.”

The state also faces a renewed legal challenge in federal court over Senate Bill 23-90 by an Englewood-based Catholic health clinic. The recent law regulates anti-abortion centers — known as crisis pregnancy centers — with the intent of putting a stop to “deceptive advertising” practices by the often religious-based clinics. It also sought to designate the offering of “abortion pill reversal” medication to patients as unprofessional conduct.

Bella Health and Wellness sued immediately after the law passed, alleging a violation of constitutional rights. The effective ban on abortion pill reversal has been delayed from taking effect until at least Oct. 23. Colorado is the only state that has banned the use of abortion pill reversal.

The clinic filed an amended complaint and request for an injunction on Sept. 22, asking a judge to halt the ban’s implementation until the legal proceedings conclude. A court hearing has been set for Oct. 17.

Abortion on the 2024 Colorado ballot

The potentially dueling ballot proposals have begun taking shape. Reproductive rights groups in September submitted a title and two variations of preliminary language for the “Right to Abortion” ballot proposal.

If the groups win the required state approvals and collect enough signatures to get the measure onto the ballot, it would need support from 55% of voters to pass because it calls for a change to the state constitution.

“The Supreme Court’s decision to remove national constitutional protections for abortion make this measure a moral imperative in Colorado,” said Jack Teter, the policy director of Planned Parenthood of the Rocky Mountains. “And it’s on all of us to keep Colorado a state where people have the freedom to make their own health care decisions.”

Teter argued most Coloradans from across the political spectrum don’t want abortion restrictions.

But voters’ past support for abortion rights, and their recent history of electing Democratic legislative majorities, haven’t stopped the backers of the proposed “Protections for a Living Child” question on the ballot next year. Proponents submitted four potential initiative filings, which vary slightly in calling for criminal prosecutions of those who provide abortions and the closure of clinics and facilities that offer them. They all would consider a fertilized egg a living human. Supporters plan to pursue one of the versions ultimately.

If proponents are able to collect enough signatures, Barnhart said, she anticipated a more positive response to the first “life initiative” on the Colorado ballot since the Dobbs decision.

She has worked in four pregnancy centers in two states during her career, most recently in Yuma as the executive director of A Caring Pregnancy Resource Center of Northeastern Colorado.

“It’ll be a definite choice,” Barhart said about the potential that both ballot questions appear on the ballot. “The same voters who will vote for the initiative to protect children will also vote down the initiative that would codify abortion.”

Renewed legal challenge on abortion reversal

Still looming is the Bella Health and Wellness lawsuit challenging the state’s new abortion pill reversal ban. Its filings take note that Colorado law protects people’s rights to continue pregnancies and allege the new restriction violates that protection — by not allowing women who changed their minds to keep their pregnancies.

The clinic’s attorneys argue that the law would also prevent their plaintiffs at Bella Health from “exercising their sincerely held religious beliefs” to provide “life-affirming care,” or else they could face the loss of their professional licenses and be penalized financially.

The Colorado Attorney General’s Office declined to comment on the ongoing case.

The treatment involves giving patients an influx of the hormone progesterone, on the claim that it can reverse an abortion if a woman has taken only the first dose of abortion medication.

Research on the treatment has been limited. Prominent medical groups, including the American Congress of Obstetricians and Gynecologists and the American Medical Association, oppose the practice, saying it’s not based in science, is misleading and unethical, and could actually harm patients.

Claims about its effectiveness don’t meet clinical standards, according to the American Congress of Obstetricians and Gynecologists. A 2020 study aimed at evaluating the protocol was shut down early because of serious safety risks.

Before Colorado’s abortion pill reversal ban was finalized, lawmakers included a caveat in SB23-90: If the state’s medical, pharmacy and nursing boards all agreed that the use of the medication is considered a generally accepted standard of practice, then clinics providing it to pregnant patients would not be subject to discipline.

In August, the Colorado Medical Board ruled that it does not consider the treatment generally accepted, though the board did not go so far as to say it is unprofessional conduct. The nursing and pharmacy boards later declined to designate the practice of offering the medication as either unprofessional or accepted.

“Now we can confidently say that anti-abortion centers have lost a major tool they use to mislead patients,” said Natasha Berwick, policy director at New Era Colorado, in a statement. “… Throughout the regulatory processes, young people showed up strongly in support of protecting a person’s right to an abortion — and that means making sure that people are provided with factual and unbiased information, shared without shame.”

But Mark Rienzi, CEO of the Becket Fund for Religious Liberty, representing Bella Health, said: “My clients know it works because they’ve held live babies in their hands. … My clients are not unscientific people.” He added that they are licensed professionals who have successfully used the protocol for decades.

Bella Health argues that abortion pill reversal should be available to women who change their minds after beginning the process of ending a pregnancy medically — a situation that researchers and advocates have said is extremely rare.

Rienzi noted that the state’s three regulation boards couldn’t agree on the practice, with the nursing and pharmacy boards opting only to assess the use of reversal treatment on a case-by-case basis.

“There’s no valid reason,” he said, “for the government to forbid these women from taking a shot at keeping their babies when they want to keep their babies.”

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• 2023
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