A proposed ordinance in Pueblo that would effectively ban abortions in the city marks the first attempt by a Texas-based anti-abortion group to poke holes in a Colorado law passed this year that prohibits restrictions on access to abortion and contraception.
The organization, Sanctuary Cities for the Unborn, started in east Texas in 2019 and has helped pass about 60 abortion-banning ordinances in Texas, Nebraska, Ohio, Iowa and New Mexico.
Mark Lee Dickson, who runs the organization, said he hopes to work in other parts of the state as well.
“Every city in Colorado needs to become a sanctuary city for the unborn,” he wrote in an emailed statement to The Colorado Sun. “Every single one of us who values life needs to do our part to protect the inhabitants of those who live within our ZIP code — both the born and the unborn.
Whether the gambit pays off in Pueblo could become clear Monday, when the city council is expected to take a final vote on the proposed ordinance. The vote follows several packed meetings in which attendees have waved signs and people on both sides of the issue have shouted interruptions.
The ordinance would prohibit delivery of tools and medicines that could be used for abortions anywhere in the city. It would also require abortion clinics to apply for a license but the city could deny it based on the delivery prohibition.
Some city council members have expressed concerns that the measure would be in direct violation of House Bill 1279, known as the Reproductive Health Equity Act, which was signed into law by Democratic Gov. Jared Polis in April and protects abortion rights in the state.
The Pueblo city attorney recommended the council not approve the ordinance.
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“I just feel like this is part of a bigger plan,” said House Majority Leader Daneya Esgar, a Pueblo Democrat and a lead sponsor of House Bill 1279. “If they’re not successful here they’re going to move on to the next county and they’re going to keep going around the state of Colorado until they find a county that has enough votes to pass an ordinance like this and that’s when we will really start seeing the challenges coming up in different court cases.”
Esgar, who is term-limited and won’t be returning to the Capitol when the legislative session begins in January, said she expected to see challenges like this after the law was signed but was surprised to see it in Pueblo, where abortion-restricting measures have historically been rejected.
The most recent statewide effort in 2020, Proposition 115, would have banned abortions after 22 weeks of pregnancy. It was rejected in Pueblo County by about 3,600 votes and went on to fail statewide.
“This isn’t Pueblo,” Esgar said. “This is something happening to Pueblo.”
Fellow council member Regina Maestri feels differently. She introduced the ordinance after an abortion provider, Clinics for Abortion and Reproductive Excellence, purchased a building in the city.
The provider, which began offering services in Pueblo on Dec. 5, has clinics in Nebraska and Maryland. The organization’s website advertises that its clinics offer abortions throughout pregnancy.
“I am so glad to have met Mark Dickson,” Maestri said in a Nov. 28 meeting. “You want to say he’s from Texas coming in here and invading. So are the abortion clinics — they’re not from Pueblo.”
Pueblo has no other abortion providers and the next-closest option is 50 miles away in Colorado Springs, according to The Pueblo Chieftain.
The council already approved the first reading of the ban in a Nov. 28 meeting, but it’s unclear if the ordinance has enough support to ultimately pass.
Inspired by Texas
The proposed ordinance in Pueblo is similar to a 2021 bill passed in Texas that allows private citizens to sue anyone who provides or receives an abortion after six weeks. Instead of using the criminal court system, the Texas measure is enforced in civil court.
The Pueblo measure would subject anyone who has tools or medicines used for abortions delivered in the city subject to a lawsuit punishable by at least $100,000 in damages, according to the ordinance.
House Bill 1279 says a government entity in Colorado may not “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.”
The bill also states that fertilized eggs, embryos and fetuses do not have independent rights under the laws of the state.
In June, the U.S. Supreme Court overturned Roe v. Wade, the 1973 decision guaranteeing a certain level of abortion access across the U.S. The Colorado legislature brought the state measure in preparation for that reversal and to prevent local governments from trying to limit abortion access.
Attorney General Phil Weiser, a Democrat, said in a written statement responding to the Pueblo ordinance that he is committed to defending Colorado’s abortion-access law.
“Our office is monitoring developments regarding the proposed ordinance in Pueblo and has no further comment while it is under consideration by the Pueblo City Council,” Weiser said.
A spokesperson for the city said City Attorney Dan Kogovsek has declined to talk with reporters about the ordinance to protect attorney-client privilege.
Veto power
The city council discussed the ordinance Wednesday during a special work session.
After 30 minutes of arguments among city council members about the nature of the meeting and which experts would be permitted to speak, the council decided to only hear comments from local OB-GYNs. The council will hold another work session Monday when they will hear legal perspectives from both sides before meeting in a regular session to hear public comment and make a final decision.
Councilmembers Dennis Flores and Sarah Martinez have expressed concern on whether the city should be involved in such a decision.
“Municipalities like ours legally cannot supersede the state legislation,” Martinez said. “So then why are we spending time on this when we have so many other citywide concerns, like freezing temperatures and violent crime?”
During the Wednesday meeting, the majority of Parkview Medical Center’s OB-GYNs sat in the audience as their chief of staff spoke, asking the city council not to pass the ordinance. The hospital is the only one in Pueblo providing those women’s health services.
Dr. Mike Growney said that none of the physicians who attended the meeting perform elective abortions, but all of them use the tools and medicines that would be banned under the measure for basic obstetric care.
“The ordinance you’re considering would impede our efforts to provide comprehensive medical care to women and detract from our ability to routinely provide lifesaving services for your wives, your sisters, your moms and yourself,” Growney said. “We can’t order, we can’t ship, we can’t receive medicines that we need to save your citizens.”
He described multiple tools and medicines that could be used for abortions but are also used for things like cancer care, miscarriages and ectopic pregnancies.
Dickson said his legal counsel, Jonathan Mitchell, the former solicitor general for Texas, has told him it is legal to ship these things as long as they aren’t intended for abortion use.
The Pueblo ordinance says fertility treatments, contraception and procedures to remove an unviable fetus and ectopic pregnancy are not defined as abortion.
In a Nov. 28 meeting, three council members — Martinez, Flores and Vicente Ortega — voted to permanently table the measure. The other four council members — Maestri, Larry Atencio, Heather Graham and Lori Winner — voted against tabling but at least two of them, Graham and Atencio, said they had not yet made up their minds on the topic.
If the council passes the measure, Pueblo Mayor Nick Gradisar, a Democrat, has seven days to veto it. The council can override a veto with at least five votes.
Gradisar said in an interview he believes the ordinance is illegal but wouldn’t say if he would veto the ordinance if it were to pass. He called the effort a political stunt and said “one way or another” he doesn’t see it becoming law.
“I think it’s to make noise, mostly,” he said. “I think this is a small group of people that have a lot of emotional involvement, but it’s the kind of situation where this determination has been made by the voters, by the legislature, that women have access to reproductive health care, and there’s nothing the City of Pueblo can do to restrict that.”
CLARIFICATION: This story was updated at 8:14 a.m. on Saturday, Dec. 10, 2022, to reflect Pueblo ordinance says fertility treatments, contraception, and procedures to remove an unviable fetus and ectopic pregnancy are not defined as abortion.
CORRECTION: This story was updated at 4 p.m. Wednesday, Dec. 21, to correct information about the Clinics for Abortion and Reproductive Excellence, which opened Dec. 5. This story was updated at 9 a.m. on Saturday, Dec. 10, 2022, to correct Jonathan Mitchell‘s title. He is the former solicitor general of Texas.