Colorado Shelves Abortion-Reversal Ban Rather Than Defend It
In a rare move, Colorado lawyers have promised a judge not to enforce a recently passed law banning medication to reverse abortions, rather than try to defend it in court. “We do think it’s very telling [that], when presented the opportunity to defend the law that the state had just passed, the state chose to run away,” said Becket Fund counsel Rebekah Ricketts, who is representing Catholic health care provider Bella Health and Wellness, in their lawsuit.
Passed roughly along party lines and signed into law on April 21, Colorado SB 190 stipulates that any physician who “provides, prescribes, administers, or attempts medication abortion reversal in this state” is “subject to discipline.” Under the legal agreement reached last week, the law is temporarily non-enforceable.
Bella filed a lawsuit the day SB 190 was signed, alleging the law violated the First and 14th Amendments of the U.S. Constitution on seven counts. Because a woman came to Bella requesting an abortion reversal that morning, the court granted an emergency temporary restraining order.
“Although Colorado claims to recognize the ‘fundamental right to continue a pregnancy,’” says the complaint, SB 190 “actively thwarts women from making that choice, and makes it illegal for nurses and doctors to assist them or even inform them about their options.” And yet “no public health goal is served.”
The complaint delves deeply into the scientific basis for abortion reversal, detailing the procedure and results of multiple studies. It notes:
“Across the country and around the world, pregnant women facing threatened miscarriages are commonly treated with progesterone — a naturally occurring and safe hormone that supports pregnancy. Progesterone helps thicken the uterine lining and suppresses uterine contractions, thereby helping a woman who makes the choice to stay pregnant carry out that choice.”
Colorado’s lawyers evidently chose not to tangle with all that science. Once the court “sets everything for briefing, schedule, and hearing,” narrated Ricketts, the state “does not defend the constitutionality of the law. They come into court and say, ‘We promise to act like the law doesn’t exist. We promise not to enforce against Bella or against any other licensee pending these rule makings by the medical boards in the fall.’”
U.S. District Judge Daniel Domenico said there was no need to block an unenforced law, but he did determine “to hold the government to its promises,” in an order issued last week, said Ricketts. The law will remain on hold until state medical boards make rules on abortion reversal treatments in the fall.
What could have induced the progressive lawyers charged with defending this progressive law to give up without firing a shot?
Perhaps they realized Bella Health’s lawsuit had them dead to rights on science, law, and politics. If they knew they had no shot, then losing this battle might prove a strategically prudent alternative to fighting a losing battle that resulted in pro-life legal precedents.
Regarding science, Bella could cite multiple studies and widespread practice to justify their use of progesterone to reverse a medication abortion after the first of two doses, while Ricketts said, “the other side hangs their hat on one failed, randomized trial.”
In that trial, conducted by Dr. Mitchell Creinin, he intended to enroll 40 pregnant women, with “one group receiving mifepristone followed by progesterone, and the other group receiving mifepristone followed by a placebo.” Only 12 women were enrolled, and only 10 completed the study; the study was nixed after three women experienced such severe bleeding they had to be rushed to the hospital. Of those women, the one given progesterone eventually needed no intervention, while the two given a placebo required emergency surgical abortions because they still had baby parts inside them. Failed indeed.
Regarding law, the lawsuit alleged that the law violated the First Amendment’s Free Exercise Clause because it was not generally applicable (Count 1) and not neutral (Count 2). SB 190 explicitly targeted “anti-abortion centers, also known as ‘crisis pregnancy centers,’” which it describes as “the ground-level presence of a well-coordinated anti-choice movement.”
The lawsuit also alleged that the law violated the First Amendment’s Free Speech Clause because it imposed content and viewpoint discrimination (Count 3) and inhibited a patient’s right to receive information (Count 4). Its “egregious form of viewpoint discrimination,” said the lawsuit, permits health care providers “to publicize any and all progesterone treatments save one — progesterone administered to reverse the effects of the first abortion pill.” SB 190 cites the American Medical Association (AMA) as asserting — despite a telling lack of evidence — “[Physicians] do not and cannot, without misleading them, tell their patients that it may be possible to reverse a medication abortion.”
The lawsuit alleged that, by infringing upon a patient’s right to refuse an abortion, the law violates the 14th Amendment’s Due Process Clause (Count 5) and Equal Protection Clause (Count 6), while its vagueness also violated the 14th Amendment’s Due Process Clause (Count 7).
Regarding optics, the lawsuit accurately depicted the law as denying vulnerable, pregnant women a choice about whether to keep their baby. Thanks to SB 190, “women who have changed their mind after beginning the abortion-pill regimen — or those who were pressured or tricked into taking it in the first place — are now left out in the cold,” the lawsuit says. That very morning, a woman had come to them requesting an abortion reversal, and the law would “deprive this woman of the ability to exercise her fundamental right to continue her pregnancy.” Abortion’s apologists can only defend the gruesome practice by describing it as a “woman’s right to choose,” but this ban on abortion reversals eliminated even that fiction.
“Although Colorado claims to recognize the ‘fundamental right to continue a pregnancy,’” notes the lawsuit, SB 190 “actively thwarts women from making that choice, and makes it illegal for nurses and doctors to assist them or even inform them about their options.”
Why would the Colorado legislature pass such an indefensible and unconstitutional law? Only one party stands to gain from forcing women to go through with abortions they want to reverse: the abortion industry. And sure enough, the abortion industry’s fingerprints are all over SB 190.
“The bill’s proponents offered testimony from Dr. Mitchell Creinin,” who conducted the failed randomized trial described above, and who “described abortion pill reversal as ‘medical fraud,’” the lawsuit described. It turns out that Creinin “has served as a paid consultant of Danco Laboratories, the distributor of mifepristone in the United States.” So Creinin — who left out the awkward details of his study — has a direct financial interest in promoting the abortion pill.
The legislative findings of the bill cited multiple pro-abortion organizations to discredit the practice of abortion reversal. In addition to the AMA citation above, the bill also called abortion reversal “a dangerous and deceptive practice that is not supported by science or clinical standards, according to the American College of Obstetricians and Gynecologists [ACOG].” The abortion industry has captured the AMA and ACOG and politicized their public statements.
The undue influence of the abortion industry provoked the bill’s sponsors into unfair criticisms of pregnancy resource centers (PRCs), bolstering the lawsuit’s argument that the bill was not neutral.
“Representative Elisabeth Epps [D], one of the bill’s House sponsors” called PRCs “fake clinics” that use “‘free pregnancy tests,’ ultrasounds, and prenatal care as ‘disinformation, intimidation and delay tactics’” and alleged that they told women, “You are less or incomplete or broken because of the status of your uterus,” said the lawsuit. “There’s not room for nuance,” claimed Epps, alleging that abortion reversal was “dangerous,” caused “harm,” and was “as effective as taking ‘a Tylenol or a Viagra or a juju bean’ to achieve the same effect.” Such toxic rhetoric has provoked nearly 100 unprovoked attacks on PRCs in the past 12 months.
Other bill proponents explicitly attacked the religious nature of many PRCs. “Senator Janice Marchman [D], one of the bill’s sponsors, stated that the bill’s reference to ‘anti-abortion centers’ referred to ‘faith-based organizations’ that offer alternatives to abortion in Colorado,” noted the lawsuit. These organizations, which she labelled “fake clinics,” “encourage women to keep their babies or link them with adoption agencies” — the horror! — which Marchman interpreted as “‘trad[ing] on the goodwill of legitimate medicine to defraud patients’ by ‘us[ing] disinformation, intimidation, shame, and delay tactics to withhold essential and time-sensitive reproductive healthcare’ and by ‘lur[ing] people in and steer[ing] them away from abortion,’” the lawsuit described. Marchman called abortion reversal, which aims to save the unborn baby’s life, “life threatening.”
“Senator Faith Winter [D], the bill’s other Senate sponsor, accused faith-based organizations of ‘taking advantage of vulnerable populations’ by ‘purposely target[ing] young people, low-income communities, rural communities, and communities of color,’” the lawsuit continued. Meanwhile, “Representative Karen McCormick [D], the bill’s other House sponsor, accused these religious organizations of engaging in a ‘bait and switch’ … by ‘fool[ing] or deceiv[ing] or outright [lying] to’ their patients,” claiming that “‘religiously affiliated’ organizations offer information that is ‘riddled with … guilt-inducing anti-abortion … messages.’”
Colorado’s legislature should have noticed the warning signs. No other state banned abortion reversal medication as Colorado did. Not California, Oregon, or Washington. Not New York, Massachusetts, Illinois, or Minnesota. It turns out there is a good reason for that: such a ban is so obnoxious to the Constitution and to common sense that it is entirely indefensible. It doesn’t even pretend to help women.
The only beneficiary of a ban on abortion reversal medication is the abortion industry, which materially profits by pushing abortion pills on vulnerable women. Such a ban perpetuates the false claim that medication abortions cannot be reversed (as many have been) and reinforces the dishonest narrative that unborn babies are not persons worthy of protection (which they unarguably are).
Joshua Arnold is a staff writer at The Washington Stand.