Colorado regulators and prosecutors said in a series of federal court filings Thursday that they would not enforce a new, first-in-the-nation law banning so-called abortion pill reversal treatment until the state’s medical boards determine whether the controversial practice should be allowed.
The declarations were made in a federal lawsuit seeking to block Senate Bill 190, which was signed into law last week by Colorado Gov. Jared Polis. The measure immediately outlawed abortion poll reversal by making it “unprofessional conduct” until at least Oct. 1. The state’s medical board, pharmacy board and nursing board would have until then to decide, in consultation with each other, whether abortion reversal meets the threshold of being a “generally accepted standard of practice.” If they decide it does not, then the ban remains in place.
The Colorado Medical Board and Colorado Board of Nursing held emergency meetings this week in light of the lawsuit, filed by a Catholic-based anti-abortion clinic with three locations in the Denver area. The two boards voted unanimously not to enforce Senate Bill 190 until they decide whether abortion pill reversal is a “generally accepted standard of practice,” a determination they’re unlikely to make before September, according to court filings.
“By not enforcing Senate Bill 190 until after the rulemaking contemplated by Senate Bill 190 is complete, the Medical Board and Board of Nursing will avoid the untenable scenario of creating dual enforcement tracks — one where Senate Bill 190 is enforced pursuant to rules promulgated by subject matter experts and one where it is not,” Samuel Delpy, a senior program director in the Colorado Division of Professions and Occupations, wrote in a court filing.
Meanwhile, the Colorado Attorney General’s Office and the district attorneys overseeing criminal prosecutions in Denver, Boulder, Arapahoe, Douglas, Lincoln and Elbert counties said that they, too, would not enforce a provision that appears to make it a deceptive trade practice to advertise or offer abortion pill reversal until the state’s medical boards determine whether it is a “generally accepted standard of practice.”
The prosecutors also raised doubts about whether Senate Bill 190 even makes it a deceptive trade practice to advertise or offer abortion pill reversal, as the lawsuit seeking to block enforcement of the law claims, because that provision is only in the bill’s legislative declaration, which is used by lawmakers to explain their measures, not in the legal language of the measure.
The declarations were made in court filings seeking to persuade U.S. District Court Judge Daniel Domenico not to continue or broaden a temporary prohibition on enforcing Senate Bill 190. Domenico issued the prohibition last week, saying that the state could not enforce the law specifically against Bella Health and Wellness, the anti-abortion clinic that sued to block the law from going into effect. The clinic argues that the law violated its First Amendment rights to free speech.
Domenico was nominated to the federal bench in 2017 by then-President Donald Trump. His nomination was confirmed by the U.S. Senate in 2019.
The Attorney General’s Office argues that since no one is enforcing Senate Bill 190, the temporary prohibition on the measure being enforced is unnecessary and Bella Health has no standing to sue.
“Bella Health faces no credible reason to fear prosecution under the new Colorado law,” the Attorney General’s Office said in asking Domenico to walk back his order. “Bella Health will not suffer any costs by waiting for the rulemaking’s outcome. Nor have defendants taken or threatened to take any action that impairs Bella Health’s interests while the rulemaking plays out.”
Domenico on Saturday morning issued a temporary restraining order shielding the Englewood-based clinic, which also has locations in Denver and Lafayette, from Senate Bill 190 for at least 14 days. The judge will hear arguments about whether the order should be extended and/or expanded on Monday.
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.”
Abortion pill reversal treatment is highly controversial and contested. 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. Anti-abortion groups say the practice is safe.
Colorado is the first state in the nation to try to ban abortion reversals.
Senate Bill 190 also explicitly makes it deceptive advertising under the Colorado Consumer Protection Act for a health clinic to falsely purport to offer abortion services or Plan B, the emergency contraceptive.
The Attorney General’s Office, in its filing Thursday, said that it was already a deceptive trade practice for a business to advertise something that’s not actually offered.
The Colorado Organization for Latina Opportunity and Reproductive Rights and New Era Colorado, which advocated for the passage of the bill, provided a written statement to The Colorado Sun. It didn’t address the delay in enforcing the bill.
“Senate Bill 190 is a bill that ensures bodily autonomy and protections for pregnant people who deserve access to medically sound, ethical and transparent care,” the statement said. “We trust that the AG’s office and our colleagues across the healthcare sector will take every matter into consideration as they move forward and are grateful to the medical and nursing boards for beginning the rulemaking process.”
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.”
Senate Bill 190 was one of three abortion-related bills Polis signed into law last week. The other measures remain intact.