A federal judge late Saturday blocked the state from enforcing a first-in-the-nation law that bans so-called abortion pill “reversal” in Colorado.
U.S. District Court Judge Daniel D. Domenico granted a preliminary injunction against the law on behalf of a Catholic health clinic in Englewood that argues the measure violates its religious freedom and infringes upon its First Amendment rights. The clinic, Bella Health and Wellness, says it has provided “reversal” treatment to dozens of women over recent years.
“There is no question whether (the law) burdens Bella Health’s free exercise of religion,” Domenico wrote in his ruling. “It does. Bella Health considers it a religious obligation to provide treatment for pregnant mothers and to protect unborn life if the mother seeks to stop or reverse an abortion.”
In blocking enforcement of the ban on abortion pill reversal, Domenico also blocked another portion of the law that could have seen anti-abortion clinics face consumer-protection sanctions for misleading advertising that implied they offer abortions when they do not.
Bella Health sued in April, on the same day the ban was signed into law. The injunction means that the state cannot enforce the law while the lawsuit against it proceeds. The lawsuit may not be resolved for months or even years.
As he signaled he would during a court hearing last week, Domenico found that the state should have to meet a higher burden of legal proof — known as strict scrutiny — for the law to stand. That is because, the Denver-based judge wrote, lawmakers knew the law would ban activity that is religious in nature. Domenico also concluded that the law is not “broadly applicable” and that the state has not sought to ban similar secular activity.
“The state must come forward with a compelling interest of the highest order to maintain the law,” Domenico wrote. “It has not even attempted to do so.”
A spokesman for the state Attorney General’s Office, which defended the law, on Sunday said the office has no comment at this time. The state has 30 days in which to decide whether to appeal.
In a statement released through their attorneys, Bella Health cofounders Dede Chism and Abby Sinnett said, “We are relieved and overjoyed to continue helping the many women who come to our clinic seeking help.”
Rebekah Ricketts, a lawyer for the Becket Fund for Religious Liberty, which represented Bella Health in the case, said in a statement that Domenico’s ruling “ensures that pregnant women across the state will receive the care they deserve and won’t be forced to have abortions against their will.”
A complicated backstory
Though the law in question is only a few months old, it is already intricately intertwined in the ongoing national debate over abortion care.
Abortion pill “reversal” is the idea that the effects of the first pill in a medication abortion regimen — a drug called mifepristone — can be counteracted if someone decides not to take the second pill. Mifepristone works by blocking receptors for progesterone, a hormone needed to continue a pregnancy. Providers of “reversal” care try to override this block by flooding the zone with high doses of progesterone in the hopes of continuing the pregnancy.
The practice is not federally approved. Scientific support for the idea is spotty at best — and reports of success are undermined by the fact that, when taken alone, mifepristone can be ineffective at causing an abortion, making it unclear whether the progesterone provides any added benefit.
But no study has conclusively debunked the notion, either. At least one study has suggested there may be an added risk of severe bleeding in patients who take mifepristone without then taking the second abortion drug. In defending the law, the state cited no instances of harm or patient complaints from the practice.
The treatment is most often provided in anti-abortion clinics, many of which are faith-based.
It is unclear how often it occurs, but even using proponents’ own figures, it still happens in fewer than 0.5% of medication abortions.
Despite the lack of evidence to support it, some conservative states have passed laws requiring abortion providers to inform patients that “reversal” is possible.
Democratic lawmakers in Colorado this year did the opposite, passing a bill declaring abortion pill reversal to be unprofessional conduct for doctors, nurses and pharmacists — meaning they could face disciplinary action if they provide it. Supporters said this was necessary to protect patients from unscientific treatments that could cause harm.
The law gave the state medical, nursing and pharmacy boards the ability to overturn the unprofessional conduct designation. But, after lengthy rulemaking hearings, the boards did not do so.
The judge’s ruling
This was the second time Domenico had blocked the law. The first came just days after the lawsuit was filed, but Domenico lifted that order after the state agreed to hold off enforcing the law while the state medical, nursing and pharmacy boards wrote rules for its implementation.
Domenico, who previously served as solicitor general for the state of Colorado, was nominated to the federal bench in 2017 by then-President Donald Trump. Both of Colorado’s U.S. senators voted in favor of his appointment when he was confirmed for the job.
Medical experts filed hundreds of pages of declarations and exhibits ahead of last week’s court hearing, setting the stage for a scientific showdown. But Domenico signaled during the hearing that he didn’t want to become a “scientific arbiter,” as he put it. Instead, he zeroed in on questions about whether the law applies broadly or whether it specifically bans activity that is religious.
His ruling on Saturday specifically focused on three issues. First, Domenico ruled that the law doesn’t try to regulate “comparable secular activity.” For instance, he wrote, lawmakers showed no interest in banning other unscientific medical practices or other off-label uses of progesterone.
“The state’s regulatory regime is vastly underinclusive as to comparable secular activities,” he wrote.
Second, he noted that the state’s medical, nursing and pharmacy boards adopted rules with the authority to examine complaints about reversal on a case-by-case basis. This undermines the state argument that the law applies broadly — not just to people exercising their religious beliefs — because it allows for “individual exemptions,” Domenico wrote.
Lastly, Domenico cited lawmakers’ own words to show that sponsors of the law knew that the ban on reversal treatment would fall especially on people providing it based on religious beliefs. He quoted the words of Sen. Janice Marchman, a Loveland Democrat and prime sponsor of the bill, who during one legislative hearing defined the anti-abortion clinics that the law sought to regulate as “faith-based organizations.” Other supporters also mentioned the religious affiliation of abortion pill reversal providers.
“It seems clear then, both given this legislative history and the bill’s text itself, that the legislature was aware that the burden of this prohibition would primarily fall on religious adherents,” Domenico wrote.
Colorado Sun reporter Jesse Paul contributed to this report.