The judge looked over his bench Monday at the attorney before him and posed a question that has consumed the nation’s abortion policy debate in the exactly 10 months since the U.S. Supreme Court blew that policy to smithereens and unleashed a torrent of new laws and lawsuits seeking to reshape the landscape.
“My question,” U.S. District Court Judge Daniel D. Domenico asked an attorney for a religious health clinic seeking to block a recently adopted Colorado law, “is what can I do now?”
The question was meant to be a narrow one.
Monday’s hearing was for just one specific and legally technical purpose: To decide whether the temporary restraining order that Domenico had issued exempting the clinic from the law’s enforcement should be expanded into a longer, but ultimately still temporary, preliminary injunction. The debate hinged on how likely the state is to enforce the law, which deals with clinics that offer treatments attempting to reverse medication abortions, and how imminent the threat is to the particular clinic that sued.
But in the nationwide context, as lawmakers and litigators battle to form the country’s new abortion status quo, it was hard not to hear in Domenico’s question the uncertainty coursing through the nation.
That uncertainty, stemming from the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision, runs through the new or newly enforced laws banning abortion in 13 states, as well as lawsuits challenging those bans. It runs through anti-abortion plaintiffs’ persuading of a federal judge in Texas to overrule the Food and Drug Administration’s long-standing approval for a drug that can be used in abortions, and the Supreme Court’s decision last week to put the Texas ruling on hold while it is appealed. It runs through Colorado Democrats’ work in the state legislature to pass three bills reinforcing protections for abortion and gender-affirming care in the state.
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And now it had run all the way up to the 10th and top floor of the Alfred A. Arraj U.S. Courthouse in downtown Denver, where attorneys from a national religious freedom legal institute had come to challenge one of those new Colorado laws.
The law has to do with what lawyers throughout the hearing referred to as medication abortion reversal care — basically, when medical providers give progesterone to a woman who has taken an abortion drug in an attempt to reverse the drug’s effects and preserve the pregnancy.
National medical organizations, such as the American College of Obstetricians and Gynecologists, argue that the practice is not backed by science. Supporters of the practice, including those who operate religiously affiliated anti-abortion pregnancy clinics, argue that the practice works and that women who want to should be able to access it. The operator of one such clinic, Bella Health and Wellness, in Englewood, sued to block enforcement of the law so that it can continue to offer abortion reversal care. The clinic says it has provided abortion-reversal treatment to dozens of women.
“There is a lot at stake here for a small number of patients who I am willing to sacrifice everything for to preserve life,” Denise Chism, the co-founder of Bella, said on the witness stand Monday.
The challenged state law, formerly Senate Bill 190, does two key things. First, it declares that providing abortion reversal care is considered unprofessional conduct for the purposes of professional licensure, meaning that providing such care could result in discipline. The legislature’s decision can be overturned, however, if all three of the state boards for doctors, nurses and pharmacists agree that providing abortion reversal care qualifies as a “generally acceptable standard of practice.”
Second, the law puts anti-abortion pregnancy centers on notice that they could be investigated for deceptive trade practices if they advertise that they provide abortion or emergency contraception when they do not.
Chism, as well as her attorneys from the Becket Fund for Religious Liberty, argue that the law unfairly targets religious medical providers and violates their First Amendment rights.
“I felt very, very attacked just in the testimony (surrounding the law), that they were singling us out,” Chism testified.
But Monday’s hearing was not about determining the meaty questions of the case pitting religious liberty against state regulatory authority. Those are to be debated long into the future, as the full case takes months or even years to reach a conclusion.
Instead, Monday’s hearing was about, essentially, how urgent of a concern the law should be for Bella Health and similar clinics, and that tightly focused question gave the hearing a feeling of sterility, far from the emotion and personal experiences of the national abortion debate.
Three witnesses — Chism and two state officials — offered brief testimony. No women who have sought or are seeking an abortion or abortion reversal spoke, though Bella Health’s attorneys did reference two women who are receiving medication abortion reversal treatment currently through the clinic.
Making the hearing all the more disorienting was that, over the hearing’s four hours, the attorneys for the state and from the Becket Fund were essentially in contentious agreement with one another. Prior to the hearing, state officials had vowed not to enforce the law until the state’s medical, nursing and pharmacy boards could hold in-depth rulemaking hearings on abortion reversal care. Those hearings likely won’t take place until the fall.
And so the attorneys and witnesses lurched through arguments trying to refine what they were there to fight about.
There was debate over the word “comprehensive” — as in, when Bella Health advertises that it provides “comprehensive” pregnancy services, does that violate the law because its services do not include abortion? Michael Kotlarczyk, representing the state Attorney General’s Office, said no.
“That statement, itself, is not going to be the basis of any action,” he said.
Mark Rienzi, an attorney from the Becket Fund, quizzed a state official about whether the medical board could in the future punish medical providers for abortion reversal care they provide now, despite the board’s vow not to enforce the law prior to rulemaking hearings.
“I’ve never seen a board declare something unprofessional conduct today and then go back in time and discipline people for that,” said the official, Samuel Delp, a senior program director in the Colorado Department of Regulatory Agencies.
Ultimately, the hearing came down to the reliability of the state’s word. And that is when Domenico asked his question: What could he do now? What is the point of issuing an injunction if the state had already promised not to do what the plaintiffs don’t want them to do?
“Aren’t we doing the same thing?” Domenico asked. “Belt and suspenders?”
“Well, if we are, suspenders are a lot better than a belt,” Rienzi responded.
“We don’t have binding,” Rienzi said later, in reference to the state’s promises. “Your honor can give us binding, and we need that.”
Domenico said he would take the arguments under advisement and issue a ruling on the injunction likely later this week.