The Democratic majority in the Colorado legislature is poised to pass a bill this year that would affirm abortion access in state law. Gov. Jared Polis has already said he will sign it into law.
House Bill 1279 is steadily advancing through the Capitol despite fierce Republican opposition. The measure was debated for 24 continuous hours on the House floor last week before passing Monday by a 40-24 vote. The Senate could start considering the bill as soon as this week.
The Colorado Sun annotated the legislation’s text to explain the policy in detail and the context behind it:
25-6-403. Fundamental reproductive health-care rights. (1) EVERY INDIVIDUAL HAS A FUNDAMENTAL RIGHT TO MAKE DECISIONS ABOUT THE INDIVIDUAL’S REPRODUCTIVE HEALTH CARE, INCLUDING THE FUNDAMENTAL RIGHT TO USE OR REFUSE CONTRACEPTION. (2) A PREGNANT INDIVIDUAL HAS A FUNDAMENTAL RIGHT TO CONTINUE A PREGNANCY AND GIVE BIRTH OR TO HAVE AN ABORTION AND TO MAKE DECISIONS ABOUT HOW TO EXERCISE THAT RIGHT.
House Bill 1279 was brought in response to challenges to Roe v. Wade, the 1973 U.S. Supreme Court decision enshrining the right to access abortion without excessive government restrictions. The court, which now has a majority of conservative justices, could overturn the precedent in the coming months in a ruling in a case out of Mississippi.
If Roe v. Wade is overturned, abortion access would not change immediately in Colorado, which in 1967 became the first state in the U.S. to loosen its abortion laws. The concern among abortion rights groups and their Democratic allies is that conservative counties and municipalities could try to enact local bans that wouldn’t be challengable in court without the protections in Roe v. Wade.
“Why now? Well, simply, our rights are under attack,” state Rep. Meg Froelich, a Greenwood Village Democrat and prime sponsor of the bill, said while introducing the measure on the House floor. “Nineteen states have enacted 106 (abortion) restrictions, including 12 abortion bans. And today, the Texas Supreme Court upheld Senate Bill 8,” a near-total ban on abortion that deputizes private citizens to sue anyone who helps a person access the procedure.
“At its core, this bill is about our right to make private medical decisions,” Froelich said.
The Colorado bill is necessary, House Majority Leader Daneya Esgar, D-Pueblo, said, to prevent a future where Roe v. Wade is overturned by the U.S. Supreme Court and municipalities are empowered to “create their own ideas of what a right to choose looks like,” resulting in a patchwork of access across the state.
But Republican lawmakers called the legislation a radical, “barbaric” and polarizing proposal motivated by fear of a future reproductive health landscape that is still unknown.
“It apparently is not enough to just authorize and provide abortion right up to the moment of birth,” said Republican Rep. Terri Carver, of Colorado Springs. “Now we must take all this body of law and impose it on every public entity in every way possible.”
She called the legislation “the most extreme pro-abortion bill in the country.”
The reality, however, is that the legislation can’t stop Republicans from trying to restrict abortion access in Colorado through the legislature or a statutory change via ballot measure. Democrats and abortion rights proponents would have to alter the Colorado constitution through the ballot to do that, which they say is too expensive and too slow of a route to take at the moment.
(3) A FERTILIZED EGG, EMBRYO, OR FETUS DOES NOT HAVE INDEPENDENT OR DERIVATIVE RIGHTS UNDER THE LAWS OF THIS STATE.
This provision is included in the bill because granting personhood to a fetus effectively outlaws abortion, Froelich told The Colorado Sun. It also responds to ballot initiatives brought by Republicans that have attempted to recognize “any human being from the moment of fertilization” as people in various provisions of Colorado law.
Voters rejected tw0 such “personhood” initiatives in 2008 and 2010. They shot down a similar proposal in 2014 that would have recognized “unborn human beings” alongside people under state law, including in the criminal code.
Critics of House Bill 1279 said they view the fertilized eggs, embryos and fetuses referred to in this provision as individuals and likened abortion to homicide.
“If it’s not a human, then what is it?” said Rep. Kim Ransom, a Douglas County Republican. “I think it’s undeniably human. That fetus that’s growing inside of a mom, whether it’s really little or 9 pounds, ready to be born, deserves rights.”
6 25-6-404. Public entity – prohibited actions. (1) A PUBLIC ENTITY SHALL NOT: (a) DENY, RESTRICT, INTERFERE WITH, OR DISCRIMINATE AGAINST AN INDIVIDUAL’S FUNDAMENTAL RIGHT TO USE OR REFUSE CONTRACEPTION OR TO CONTINUE A PREGNANCY AND GIVE BIRTH OR TO HAVE AN ABORTION IN THE REGULATION OR PROVISION OF BENEFITS, FACILITIES, SERVICES, OR INFORMATION; OR (b) DEPRIVE, THROUGH PROSECUTION, PUNISHMENT, OR OTHER MEANS, AN INDIVIDUAL OF THE INDIVIDUAL’S RIGHT TO ACT OR REFRAIN FROM ACTING DURING THE INDIVIDUAL’S OWN PREGNANCY BASED ON THE POTENTIAL, ACTUAL, OR PERCEIVED IMPACT ON THE PREGNANCY, THE PREGNANCY’S OUTCOMES, OR ON THE PREGNANT INDIVIDUAL’S HEALTH.
Among critics’ top concerns is the potential for the bill to steamroll existing regulations on abortion, namely a requirement that a minor’s parents be notified 48 hours before they undergo the procedure.
Democrats blocked Republicans’ attempt to explicitly preserve the parental notification provision in the legislation.
Republicans said the failure to do so left open the door for lawyers to challenge it in court. But proponents of the legislation say it has no impact on the parental notification requirement, because parents — even once notified — cannot legally stop an abortion from moving forward.
“Access to abortion and the ability to choose an abortion are two different matters,” Froelich said, saying that legal interpretation of House Bill 1279 was affirmed by nonpartisan legislative staff. “Parental notification is a barrier to access but not a barrier to choice.”
In introducing the bill, Esgar said it would just codify “status quo right now in Colorado” in state statute.
“We’re not adding any new access points,” she said. “We’re not adding anything new to our laws.”
25-6-405. Application. (1) THIS PART 4 APPLIES TO ALL STATE AND LOCAL LAWS, ORDINANCES, POLICIES, PROCEDURES, REGULATORY GUIDELINES AND RULES, PRACTICES, EXECUTIVE ORDERS, AND GOVERNMENTAL ACTIONS AND THEIR IMPLEMENTATION, WHETHER STATUTORY OR OTHERWISE. THE RIGHTS PROTECTED UNDER THIS PART ARE A MATTER OF STATEWIDE CONCERN.// (2) NOTHING IN THIS PART 4 MAY BE CONSTRUED TO AUTHORIZE A PUBLIC ENTITY TO BURDEN AN INDIVIDUAL’S FUNDAMENTAL RIGHTS RELATING TO REPRODUCTIVE HEALTH CARE.
This section of the legislation would prevent counties and municipalities from enacting laws restricting access to abortion and/or contraception.
By declaring the bill “a matter of statewide concern,” the sponsors of the legislation are attempting to preempt any localized efforts to restrict abortion access under the banner of Colorado’s local control structure.
25-6-406. Severability. IF ANY PROVISION OF THIS PART 4 OR THE APPLICATION THEREOF TO ANY PERSON OR CIRCUMSTANCE IS HELD INVALID, THAT INVALIDITY DOES NOT AFFECT OTHER PROVISIONS OR APPLICATIONS OF THIS PART 4 THAT CAN BE GIVEN EFFECT WITHOUT THE 4 INVALID PROVISION OR APPLICATION, AND TO THIS END THE PROVISIONS OF THIS PART 4 ARE DECLARED TO BE SEVERABLE.
This part of the bill is an acknowledgement that the bill may face legal challenges. It prevents the entire measure from being invalidated should part or parts of it be overturned by a judge.
SECTION 3. Safety clause. /The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, or safety.
There are three main ways lawmakers can prescribe in a bill how it should be enacted.
The first is by setting a specific date or dates by which the entire measure or different parts of it should go into effect. The second is by having the bill go into effect 90 days after the legislative session ends, through what’s called a petition clause. The third way is through what’s called a safety clause, which makes the bill go into effect as soon as it is signed into law by the governor.
For House Bill 1279, the Democratic sponsors of the legislation chose to place a safety clause in the measure because Roe v. Wade could be overturned as soon as June.
Safety clauses are sometimes seen as controversial because they don’t allow citizens an opportunity to try to collect signatures to force a vote on whether or not a bill should be enacted.
For instance, after the legislature in 2019 passed a bill signing the state onto the National Popular Vote Interstate Compact, Republican opponents of the measure collected signatures to force a 2020 vote on whether the measure should be enacted. Colorado voters, through Proposition 113, opted not to overturn the legislature’s passage of the measure.
A Republican attempt to replace the safety clause on House Bill 1279 with a petition clause failed.