After hundreds of pages of court filings and more than two hours of legal argument Tuesday, U.S. District Court Judge Daniel D. Domenico arrived at the simplest possible way to tame the sprawling debate around Colorado’s new law banning so-called medication abortion “reversal” treatment and to decide whether the first-of-its-kind law should stand — at least for now.
The case, he said, wouldn’t be decided by whose science is most correct. It’s about whose standard is.
“Let me save everyone some time,” Domenico said at one point while questioning Assistant Attorney General Brian Urankar, who was representing the state Medical Board in defending the law. “If we’re applying rational basis, you’re going to win. If we’re applying strict scrutiny, you’re going to lose.”
Those terms — rational basis vs strict scrutiny — reflect the standards of judicial review that the opposing sides argue Domenico should take. The state wants Domenico to use the more lenient rational basis standard, arguing that the law is not discriminatory and so should be allowed to stand. The plaintiff, a Catholic health care clinic based in Englewood called Bella Health and Wellness, wants Domenico to apply the more stringent strict scrutiny standard, arguing that the law infringes on their religious freedom and so should be blocked.
By the end of Tuesday’s hearing over whether Domenico should grant a preliminary injunction, the signs were ominous for the law — though Domenico deferred a ruling on the issue until later this week or early next.
While Domenico said he doesn’t believe lawmakers had explicitly anti-religious motivations in passing the law, “it does seem that they saw an activity that they understood on the other side to be religiously motivated and they banned that.”
Medical regulation or religious discrimination?
To understand why this is a potentially significant statement by Domenico, it helps to understand the now-lengthy backstory to the law and the debate.
Abortion pill “reversal” is the idea that the effects of the first of two drugs taken during a medication abortion — mifepristone — can be counteracted with large doses of the hormone progesterone before the second drug is taken. Proponents, many of whom are associated with religious-based medical clinics, say “reversal” should be an option when a pregnant person takes mifepristone and then decides they don’t want to continue the abortion. All available evidence suggests this happens extremely rarely.
Opponents, who include most major medical groups, say there is insufficient evidence to back up the practice, as well as studies that suggest it flat-out doesn’t work. They say that offering “reversal” treatment given this evidence is unethical and irresponsible, and the treatment is not federally approved.
Democrats in the state legislature, amid the upheaval nationwide surrounding reproductive rights, this year passed a law declaring the practice to be unprofessional conduct, and recently adopted rules by the state medical, nursing and pharmacy boards did not overturn that declaration. Reversal providers, though, say that providing the treatment is part of their religious mission.
“This is a religious exercise and they have now banned the plaintiffs’ religious exercise,” Mark Rienzi, the president and CEO of the Becket Fund for Religious Liberty and an attorney representing Bella Health and Wellness, argued to Domenico.
Choosing the standard
So that brings us back to Domenico’s dilemma: picking the appropriate standard for review.
Is the law religiously neutral and simply focuses on regulating the practice of medicine? If so, then the state is entitled to a rational basis review — meaning, if the state had a rational reason for adopting the law, then it should stand.
To Urankar, the state’s attorney, that’s exactly what happened. Though the state Medical Board has never received a complaint related to abortion pill reversal, Urankar said lawmakers and board members wanted to create a “prophylactic defense” against any potential harm from the practice.
“The interest is in protecting patients from a protocol that all the science says, at best, doesn’t work,” he said.
But Rienzi argued that the law is targeted, and that means it should receive a strict scrutiny review — it should have a much higher burden to prove.
Rienzi argued that the state didn’t act neutrally to stamp out all medical practices not fully supported by research. Lawmakers showed no interest in regulating other off-label uses of progesterone, he said. Therefore, the law wasn’t “broadly applicable.”
“There’s one and only one case where they have regulated progesterone,” he said.
And the state has not put forth evidence of people being harmed by “reversal” treatment — something Domenico acknowledged would come into consideration if he decides on a strict-scrutiny standard.
Domenico did also pepper Rienzi with skeptical questions, including one asking why he should view providing abortion pill reversal to be a religious act when, hypothetically, there could be other doctors offering it for non-religious reasons.
“That makes it harder to apply some of these other cases,” Domenico said to Rienzi, who had cited a raft of U.S. Supreme Court rulings in favor of religious plaintiffs, including the Masterpiece Cakeshop case that originated in Colorado.
But he saved his most pointed inquiries for Urankar.
“This is the one procedure where the legislature has done this,” Domenico said, pressing Urankar to respond to Rienzi’s line of argument. “The interest in protecting patients from off-label use or unproven use is not broadly applied.”
Urankar responded that the Medical Board would review and potentially discipline doctors for unscientific treatments if it received complaints about them.
Domenico said he expects to issue a ruling on the injunction request by Monday night. The state Medical Board has said it won’t begin enforcing the new law and rules until Tuesday.