A federal judge over the weekend temporarily exempted a Catholic anti-abortion clinic from a first-in-the-nation law enacted Friday by Colorado Gov. Jared Polis that bans medical professionals from administering abortion-reversal drugs through at least Oct. 1.
The decision to issue a temporary restraining order sought by Englewood-based Bella Health and Wellness came from U.S. District Judge Daniel D. Domenico, who was nominated to the federal bench in 2017 by President Donald Trump.
Bella Health and Wellness filed a lawsuit Friday, soon after Polis signed Senate Bill 190 into law, asking that enforcement of the measure be temporarily halted. The group, through its attorneys at Becket, a nonprofit religious liberty law firm, argued that the legislation violated their constitutional free speech and equal protection rights.
Domenico, in an order issued just after midnight Saturday, wrote that the “plaintiffs have made a sufficient showing that Senate Bill (190) burdens their own First Amendment rights.”
“I find that the plaintiffs are sufficiently likely to succeed on the merits of one or more of their claims that short-term relief is warranted until the defendants can be heard in opposition and the propriety of continuing with a preliminary injunction can be determined,” Domenico wrote.
Domenico declined to extend the temporary restraining order to all enforcement of Senate Bill 190, instead limiting the order to Bella Health and Wellness’ three Colorado clinics, which are also in Denver and Lafayette. The order lasts 14 days with a hearing set for April 24, when Domenico will hear arguments as to why the order shouldn’t be extended and expanded to apply to all health clinics.
“The legal merits of the plaintiffs’ claims present difficult questions that cannot be adequately analyzed within the time constraints necessary to prevent potential irreparable injury to the plaintiffs’ patients who have already begun progesterone treatment and may have their care interrupted absent immediate injunctive relief,” the order said.
Progesterone is used to try to reverse abortions through another drug, called mifepristone, which is taken as a pill and induces abortion in early pregnancy.
Some states require abortion providers to tell their patients that they can reverse an abortion, but the American College of Obstetricians and Gynecologists says claims about abortion-reversal treatment “are not based in science” and that reversal procedures are unproven and unethical.
Prescribing, offering or facilitating abortion pill reversal will be considered “unprofessional conduct for licensed, registered or certified health care providers” under Senate Bill 190 unless by Oct. 1 the Colorado Medical Board, State Board of Pharmacy and the State Board of Nursing, in consultation with each other, find that it’s a “generally accepted standard of practice” to engage in abortion pill reversal.
Colorado is the first state in the nation to ban abortion reversals.
In a signing statement, Polis wrote that he was wary of how Senate Bill 190 “attempts to circumscribe precise medical treatments into law.”
“Although I don’t agree with legislating the practice of medicine, this direction only lasts five months under this bill,” the Democrat wrote. “The standards of practice for medicine should be left to appointed medical professionals in the state driven by the ongoing process of science.”
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Polis, through a spokesman, declined to comment Sunday night on the temporary restraining order. The governor was not named as a defendant in the lawsuit.
“We will not comment on this pending litigation and the governor stands by a woman’s right to choose,” said Conor Cahill, the spokesman.
A spokesman for Colorado Attorney General Phil Weiser, a Democrat who is a defendant in the legal action, said Weiser’s office is aware of the temporary restraining order, but didn’t comment further, citing the active litigation.
Domenico said in his order that “whether these plaintiffs have standing to bring claims based on alleged violations of their patients’ constitutional rights is questionable. … I must balance the harm to the plaintiffs of not granting a (temporary restraining order) against the defendants’ and the public’s harm if a (temporary restraining order) is granted.”
“In addition to the potential interruption of their patients’ care, a violation of the plaintiffs’ First Amendment rights would necessarily establish irreparable harm,” the order said. “On the other side, the state and the public certainly have an interest in preventing deceptive trade practices and provision of medical treatments that are outside generally accepted standards of practice, the stated purposes of Senate Bill 23-190. But though the efficacy of progesterone treatment in maintaining a patient’s pregnancy after taking mifepristone appears debatable, this treatment does not appear to pose severe health risks to patients who receive it, as evidenced by the fact that the treatment currently remains legal in every state but Colorado. And the potential harm to the public interest will be limited by a short-term (temporary restraining order) that prevents enforcement of Senate Bill 23-190 only against a single medical clinic.”
In filing the lawsuit, Dede Chism, co-founder and CEO of Bella Health and Wellness, said in a statement that “we opened Bella because of our belief that life is a precious gift from God, worthy of protection at all stages.
“When a woman seeks our help to reverse the effects of the abortion pill, we have a religious obligation to offer every available option for her and her child,” she added.
Becket, which is representing Bella, said on Monday morning that Senate Bill 190 “tramples the constitutional rights of these women and their doctors.”
“We are grateful for the court’s late-night order halting this draconian law, allowing our clients to continue their good work of serving women in need,” said Ryan Colby, a spokesman for Becket.
The Colorado Organization for Latina Opportunity and Reproductive Rights, which advocated for Senate Bill 190, said it was proud of the work it did on the measure.
“The bill’s intention is to ensure that consumers have access to reliable, trustworthy and scientific information at their disposal,” the group said. “We anticipated potential legal challenges.”
Jack Teter, regional director of government affairs for Planned Parenthood of the Rocky Mountains, said that claims about abortion reversal “do not meet clinical standards and it is absolutely unprofessional for licensed health care providers to mislead their patients by telling them otherwise.”
Laura Chapin, a spokeswoman for Cobalt Advocates, an abortion rights group, slammed the ruling as another example of abortion opponents making law through the courts.
“They’re doing through the courts what they can’t do through the legislative process,” she said. “They can’t get stuff through the democratic process so they’ve installed judges who will do it for them.”
Domenico was Colorado’s solicitor general, a top position in the Colorado Attorney General’s Office, from 2006 to 2015. He was working in private practice when he was tapped by Trump for the federal bench.
Domenico’s nomination was approved by the U.S. Senate in April 2019. Both of Colorado’s U.S. senators at the time, Republican Cory Gardner and Democrat Michael Bennet, voted “yes” to confirm Domenico.
Earlier this month, a federal judge in Texas overruled decades of scientific approval and put on hold federal approval of mifepristone, one of two drugs used in combination to end pregnancies. The U.S. Supreme Court said Friday it was temporarily keeping in place federal rules for use of mifepristone while it takes time to more fully consider the issues raised in a court challenge.
In June, the Supreme Court overturned Roe v. Wade, the 1973 decision that guaranteed a minimal level of abortion access for nearly five decades. In Colorado, abortion access is nearly completely unfettered. But the procedure has been severely restricted in states with Republican legislatures and governors since Roe v. Wade was undone.
Senate Bill 190 also makes it deceptive advertising for a health clinic to falsely purport to offer abortion services or Plan B, the emergency contraceptive.
It was one of three abortion-related bills Polis signed into law Friday. The other measures remain intact.
The Associated Press contributed to this report.