Courts May Not be a Venue for Answering Colorado’s Abortion Question
Despite concerns about medicine and constitutionality, an abortion ballot measure may not see a challenge, if passed

by Hank Lacey
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As Colorado voters weigh in on Proposition 115, lawyers and public health advocates are raising the alarm about the potential loss of health care access for women who need the procedure to lower their risk of death from cancer, heart disease and other ailments.

The ballot initiative would ban abortions after 22 weeks of gestation. According to a press release from its advocates, that gestational age marks the time “when a prematurely born baby can survive on its own with proper medical care” and is therefore viable. But medical studies and legal questions abound regarding what is “viable.”

Legally, that marker of when an abortion could no longer be provided might be theoretically problematic, according to Christopher Jackson, a partner at Holland & Hart. “I think I would say, as a purely doctrinal matter, there’s a pretty good argument that Proposition 115 is not constitutional under that standard,” he said. Nevertheless, Jackson said, it’s not realistic to count on the U.S. Supreme Court to rule it unconstitutional. “Practically, I’d say that, with the addition of Justice Amy Coney Barrett, I’d put the odds pretty low for any constitutional challenge to this law.”

Medically, the answer is only slightly more evident. A 2015 study found a small minority of fetuses can survive at 22 weeks with intensive medical intervention but survival rates between that point of development and a gestational age of 23 weeks have a survival rate of as low as 1%. However, the paper, which was published in the New England Journal of Medicine, said the survival rate might also be as high as 52%.

A 2019 study in the Journal of the American Medical Association found the survival rate of preterm infants born between 22 and 26 weeks could be as high as 77%.

According to Dr. Kate Coleman-Minahan, a professor of nursing at the University of Colorado’s Anschutz Medical Campus, the survival rate is much lower when the developing infant is at a gestational age closer to 22 weeks than 26 weeks. “Survival is incredibly poor at earlier gestational ages,” she explained. “Between 22 and 23 weeks, 97 to 98% do not survive, and only 1% survive without neurological impairment. By the time we get to 24 to 25 weeks, only about one-third survive without neurological impairment, including blindness and cognitive deficits,” she said.

Jackson said this medical uncertainty poses a conundrum for judges who must decide whether statutes like the one Proposition 115 would enact into law are consistent with the federal and state constitutions. “What does non-viable mean?” he asked. “Is there some percentage threshold? If 50% survive, does it need to be higher or lower? I don’t think there’s an answer to that question. It’s not clear.”

In any case, said Coleman-Minahan, the public should be wary of assuming that preterm infants who leave the womb at such a young gestational age are likely to be healthy. “This public conception of viability, that it’s a completely viable infant that can survive outside the womb, is wrong,” she said. “Even if they survive, they often have severe health problems and are often in neonatal intensive care.” Given these uncertainties, both the American Academy of Pediatricians and the American College of Obstetricians and Gynecologists recommend that decisions relating to whether to provide medical care to a developing infant at that level of maturity should be left to clinicians and parents.

For Lizzy Hinkley, ACLU-Colorado’s reproductive rights policy counsel, these realities of fetal development counsel against enacting a law that would forbid access to abortion after 22 weeks of gestation. “The need to access abortion care does not stop at any point during pregnancy,” she argued. “If you have a condition that threatens your life at any point in pregnancy, you might need to access abortion to save your life.”

Hinkley said the circumstances affecting a woman or a growing fetus during pregnancy can change. “Some pregnancies will never be viable,” she said. “A lot of folks who come here are people who, at 20 weeks, 22 weeks or later, receive a lethal fetal diagnosis from their provider. Something has not developed. These are people who are planning for a baby to arrive in a few months and how they’re being told that if their baby makes it through birth, she will die a short time later.”

For this reason, Hinkley said, women from around the country and even from around the world come to Colorado to access late-term abortion services. “Once it’s clear to a provider that a person needs to access later term abortion care, and they can’t do it in their home state, they tell them to come to Colorado,” she said. “In 2018, two-thirds of patients who accessed abortion care in Colorado after 21 weeks came from out of state.” The Guttmacher Institute, a New York-based think tank that studies reproductive health access in the U.S. and around the world, said in a 2019 paper that 35% of women travel more than 25 miles one-way to obtain abortion services.

Proposition 115 would unfairly exacerbate the burdens on women who cannot obtain late-term abortions in their home states or native countries, according to Hinkley. The Guttmacher Institute concluded in 2005 that, of women who choose to have an abortion at any point during pregnancy, nearly three-fourths do so because they are concerned about the impacts of the parturiency on their employment, education or ability to care for their existing children.

Despite Colorado’s status as a destination for women seeking a late-term abortion, the absence of a gestational age ceiling in the state’s law has not led to a significant number of late term abortions. According to data for the years 2003–2019 compiled by the state’s Department of Public Health and Environment, a low of 77 abortions of a fetus who had reached a gestational age of at least 21 weeks occurred in 2015, while a high of 133 took place in 2003.
That relatively low incidence of late term abortions is in line with the generally low rate at which women in the state terminate a pregnancy. The Colorado Department of Public Health & Environment’s records indicate that there were 9,002 abortions in Colorado in 2019, which was a decline from 11,201 in 2010.

Were Colorado to prohibit late-term abortions, Hinkley said, women in search of that medical procedure would be limited to only six other states and the District of Columbia. “From the line between North Dakota and Texas to the West Coast, for the 17 states in that region, 14 already have later term abortion bans in place. The only two states in the region that would not have the ban are New Mexico and Oregon,” she said. “The other places she could go are Alaska, Washington, D.C., Vermont, New Jersey or New Hampshire. There’s nothing in between. Not even California.”

Nor do women have the luxury to search for a state that will accommodate the necessity for abortion when a fetus has reached a gestational age of more than 22 weeks, Hinkley maintained. “The majority of people who access abortion at any time during a pregnancy are already parents. There are child care obligations, there are job obligations, and this isn’t covered by insurance. There’s a good probability that you’ll have to come with over $10,000 of your own money to access that care,” she explained.

Coleman-Minahan emphasized that these consequences will also be unlikely to fall equally on all women who depend on abortion services late in a pregnancy. “A change would disproportionately affect women who are not affluent, women of color, women who struggle to support their families,” she said.

The gestational age limit is not the only cause for concern among advocates for women’s reproductive health. Coleman-Minahan took pains to highlight the restrictive nature of the proposed exception to that cap. “Proposition 115 only makes an exception in cases of immediate endangerment, not for exacerbation of chronic health problems,” she said. Hinkley emphasized the uncommon severity of the ban. “[Proposition] 115 is different from numerous other states that have later abortion bans in the sense that it includes the most narrow exception of its kind in the country,” she said.

Coleman-Minahan said that some women, after becoming pregnant, are advised by their physician that the odds of death from cancer and cardiovascular disease are increased if the pregnancy is carried to term. She also suggested that the risk of fatality is not the only health consequence for a woman that should be given weight. “There’s also various types of uterine infection that could occur later in pregnancy, but not early enough to deliver a preterm infant,” she said.

Hinkley said that given Proposition 115’s omission of a pathway to late term abortion when a woman experiences mental or emotional health conditions, the possibility that a fetus suffers from lethal anomalies or the conception resulted from sexual assault is also problematic. “Proposition] 115 has no exception for when the woman’s health is in danger, no exception for when she’s about to lose her life but it’s from a mental or psychological health crisis, no exception for when families receive a lethal fetal diagnosis, and there’s no exception for survivors from rape or incest,” she said. “If someone’s presenting suicidal tendencies and it’s medically indicated that this person be provided an abortion, they would not be able to get one under [Proposition] 115.”

Jackson said the language of the proposition might nevertheless pass constitutional muster. “I think so, in the sense that the exception was put in to try to be consistent with Casey and Roe,” he said. “Again, it’s not a clear standard.” He noted that it is also possible that the decisions of courts with jurisdiction over Colorado may not turn out the same as the decisions of courts elsewhere. “Different federal circuit courts may make different decisions about what is constitutionally protected,” he said. “It’s very possible that you might get radically different rules in different jurisdictions.” Besides, he said, the U.S. Supreme Court has indicated that states do have room to regulate abortion past the first trimester of a pregnancy. “The Supreme Court has never said that everybody is entitled to an abortion at any time under any circumstances,” he explained.

Hinkley, too, worried that women who desire to obtain an abortion after 22 weeks of gestation may be unlikely to succeed in any effort to obtain an injunction against the initiative’s enforcement. “At this point, with the Supreme Court being the way it is and the circuit courts and district courts becoming packed with more judges who oppose abortion, the federal court is not a route that would be friendly to a challenge to a law like Proposition 115.”

She also expressed alarm about the likelihood that physicians would not risk the legal entanglements that might follow if they decide that the exception in Proposition 115 permits them to perform an abortion. “Even if that law has an exception, they’re in serious danger of being targeted by litigious anti-abortion activists even if they’re complying with the law,” she said. “It effectively prohibits providers from providing an abortion after 22 weeks even if, in their medical judgment, they think it fits within the exception. It’s a whole can of worms. They’d have a criminal record and [Proposition] 115 requires medical license suspension for three years, so that’s someone’s livelihood.”

Whether or not the existing law that constrains the authority of states to limit abortion remains in place or not, Hinkley said that patients are the ones that will suffer if the voters approve the measure. “There will always be unique circumstances that warrant the need to access safe care in your home community,” she said.

 

This article appeared in the Oct. 26 issue of Law Week Colorado. To read other articles from that issue, order a copy online. Subscribers can request a digital PDF of the issue.