Lawyers for a national religious rights organization have filed a new motion for a preliminary injunction against Colorado’s law banning so-called abortion pill “reversal.”
The motion, filed last week by lawyers from the Becket Fund for Religious Liberty on behalf of Catholic health clinic Bella Health and Wellness, says recent rulemaking by state medical boards has “doubled down” on the law’s alleged violations of religious freedom and free expression.
The clinic, whose providers are anti-abortion, says it has a religious obligation to provide reversal because “they cannot in good conscience turn their backs on a woman who seeks their help to keep her baby.”
“A new Colorado law targets women who have changed their minds about abortion, forcing them to undergo abortions they seek to avoid,” the motion begins. “In a flagrant constitutional violation, Colorado has forbidden doctors and nurses from helping these women.”
The lawsuit seeks to overturn Colorado’s law, but it could ultimately have a much broader impact than that. The case fits with the movement by conservative Christian organizations to use complaints in court against local or state regulations to push for great protections for religious freedom on the national level, said Joshua Wilson, a professor of political science at the University of Denver who studies abortion politics.
“Definitely one of the strategies of the Christian conservative legal movement has been to try to find new legal arguments that they can use more aggressively in court,” Wilson said.
What is abortion pill “reversal”?
The lawsuit certainly takes on a novel question — Colorado is the first state in the nation to try to ban abortion pill reversal. To attempt a “reversal,” a doctor prescribes high doses of progesterone to a woman who has taken the abortion drug mifepristone and then, for whatever reason, wishes to undo the drug’s effects.
Such instances are extremely rare. Even using reversal proponents’ own figures, people seeking out reversal treatment represented 0.2% of the more than 14,000 abortions in the state in 2022. The research on whether “reversal” works is muddy. No controlled clinical trials have validated its safety and efficacy, though no studies have conclusively debunked the practice either. Research that argues in favor of the practice often comes from anti-abortion organizations and doctors.
Opponents of the practice say there isn’t sufficient evidence to justify its use. The American College of Obstetricians and Gynecologists, the nation’s leading organization for providers of women’s health and maternity care, says reversal is unethical and “not supported by science.” The Colorado Medical Board concurred in its recent rulemaking, finding that reversal is outside “generally accepted standard of practice.”
For proponents of reversal, though, Colorado authorities have overlooked evidence that could support the practice — meaning that in addition to the claims of religious discrimination, the plaintiffs are also alleging the Colorado law unconstitutionally denies patients the right to make their own medical choices.
Bella Health and Wellness, which is located in Englewood, says it has provided reversal treatment to dozens of women over the years, including “numerous” women who have contacted the clinic since Colorado’s law was passed.
The clinic says in court documents that one of its patients gave birth this month to a healthy baby boy, while three more are scheduled to give birth before the end of the year. (A spokesman for the Becket Fund for Religious Liberty said the women are not available for interviews.)
A challenge to medical authority
To Wilson, the DU professor, the lawsuit fits cleanly in line with how conservative Christian activists have evolved to advance their cause through the courts.
Wilson said the movement has stood up legal organizations to fight these court battles — the Becket Fund being one, the Alliance Defending Freedom is another. And these organizations have found an increasingly receptive audience in a conservative-dominated U.S. Supreme Court.
The preliminary injunction motion is studded with this evidence of this trend, including citations to other high-profile cases that originated in Colorado and were ultimately decided by the U.S. Supreme Court in favor of plaintiffs claiming violations of religious freedom — such as the Masterpiece Cakeshop case and the 303 Creative case.
In the former, the Supreme Court said Colorado did not act with religious neutrality when it punished a baker for refusing to make a cake for a same-sex wedding; the latter, decided this summer, built on that case when the Supreme Court declared that Colorado could not enforce its anti-discrimination law against a website designer who said she wouldn’t make websites for same-sex weddings because of her religious beliefs. (The ruling rested on free speech grounds, though, not religious freedom.)
Wilson said the Supreme Court’s agreeing to even hear the 303 Creative case, which was widely seen as having been brought prematurely, “shows their willingness if not their desire to continue to rule on these kinds of disputes.”
The lawsuit against Colorado’s abortion reversal law also highlights another trend in Christian conservative legal efforts. The movement has increasingly developed separate expert organizations to provide research that backs their arguments.
In the case of the latest Colorado lawsuit, those groups include the Charlotte Lozier Institute, which says it “advises and leads the pro-life movement” with research that it supports. The institute has produced informational sheets about abortion pill reversal and one of the country’s leading advocates for the practice serves as a “guest contributor” to the institute.
Wilson said this alternate channel for providing research works to turn legal battles into a clash of experts, even when, as with abortion pill reversal, the mainstream scientific authorities are all on one side.
“They need to have medical arguments to be able to counter big medical authorities that disagree with the Christian right’s arguments,” Wilson said.
He described this as the movement’s two-track legal approach.
“One is you make these religious-liberty, free-exercise arguments that are basically saying the religious-liberty right trumps any and everything else,” Wilson said. “But if the court isn’t willing to go that far, the other strategy is to challenge the medical authority of the state and the research they’re citing.”
Ruling expected next month
All of this gives the Colorado lawsuit a potentially momentous importance: If it climbs the judicial ladder to the country’s highest court, it may ultimately end up being about not just abortion policy.
Instead it could define what regulations governments can impose upon doctors who say they are acting on sincerely held religious beliefs. And a ruling in the plaintiffs’ favor there could have much bigger implications than just overturning Colorado’s law.
U.S. District Court Judge Daniel Domenico, a former Colorado solicitor general and an appointee of former President Donald Trump, has set a hearing for Oct. 17 to debate the motion for a preliminary injunction. A ruling is expected by the following week.
The plaintiffs have also filed an amended complaint, incorporating arguments against the rules recently adopted by the state medical, nursing and pharmacy boards. Once the injunction request is decided, a full ruling on the merits of the lawsuit could take months or years.