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Colorado’s Reproductive Health Equity Act
Tom Perille, M.D. | 10 June 2022
It was inevitable that when the Roe and Casey decisions were revisited by the Supreme Court on December 1, 2021, Colorado Democratic legislators would rush to protect unfettered abortion access in Colorado.1 They could see the handwriting on the law – the so-called “right” to an abortion was based on a faulty interpretation of history and the Constitution. They recognized what we in the pro-life community have believed for decades - that Roe was a raw exercise of judicial political activism. It appears likely that abortion laws would be returned to the jurisdiction of the individual states.
Colorado has always been at the vanguard of the pro-abortion movement.2 In 1967, Colorado passed the first law in the nation to grant legal access to abortion. The law would look quaint by today’s standards since it only permitted abortion in the cases of rape, incest, fetal abnormality, or to protect the life of the mother. Furthermore, abortions were only permitted up to 16 weeks of pregnancy and, even then, only after permission from the husband and a review by a three-physician panel.
In response to the threat of overturning federal abortion rights, Colorado legislators decided to go very big this time. They arguably crafted the most liberal abortion law in the world. It goes far beyond the framework in the proposed federal Women’s Health Protection Act which maintains a viability standard.3 The Reproductive Health Equity Act (RHEA) explicitly states that a “pregnant individual” has a fundamental right to have an abortion anytime during pregnancy.4 And a fertilized egg, embryo, or fetus “does not have independent or derivative rights.” To “deny, restrict, interfere with, or discriminate against” an individual who exercises her right to an abortion is prohibited. This includes any measure to discourage, punish, or prosecute a pregnant individual for jeopardizing her own health or the health of her developing baby through any direct action or negligence.
RHEA effectively codifies a “sovereign zone” perspective on abortion.5 A woman can do anything she wants to her body (or the body within her body) since it is hers and hers alone, regardless of the humanity of her developing unborn child. This is a radical form of the bodily autonomy argument that effectively eliminates any restrictions or regulation of abortion.
The prospect of a radical abortion rights bill galvanized the pro-life community in Colorado which has been fragmented and dysfunctional over the years. Pro-Life Colorado was formed which is an amalgam of 21 different Colorado pro-life groups.6 We could not always agree on what we were for but could unify our diverse community around what we were against. Incrementalists and abolitionists found common ground in their strong opposition to RHEA.
Several members of the Pro-life Colorado coalition met with the Colorado House sponsor of the bill, Representative Meg Froelich, before it had been submitted to the legislature. We were armed with polling from 2020 that demonstrated that only a 37% minority of Coloradans were in favor of unrestricted abortion.7 We thought we could persuade her to moderate the bill. Tragically, we were wrong. She did not flinch when we discussed the implications of unrestricted abortion – abortions for (male) sex selection, abortions for anticipated disabilities, abortions based on the race or ethnicity of the fetus, abortions in the third trimester for social or economic reasons, and even the potential for abortions based on DNA variants linked to same-sex behavior. We naively thought that a Democratic legislator who professed to be a feminist, a disability rights advocate, a social justice warrior, and a LGBQT+ rights proponent would cringe at the blatant prenatal injustices promulgated by unrestricted abortion.
The bill was drafted in collaboration with Planned Parenthood of the Rocky Mountains, COBALT (formerly NARAL Prochoice Colorado), and COLOR (Colorado Organization for Latina Opportunity and Reproductive Rights). Their legislative strategy was to introduce the bill and quickly schedule committee hearings to minimize the time the opposition had to organize. This is the same playbook that was utilized in New Jersey’s Freedom of Reproductive Choice Act.8 The tactic likely will be repeated in Blue States across the country. It is ironic that the proponents feel compelled to rush these measures to avoid public scrutiny while simultaneously claiming that they garner wide public support.
The Colorado legislative sponsors were in for a surprise. Not only did pro-life advocates show up, but they showed up in force. The first hearing in the House Health and Insurance Committee lasted over 13 ½ hours. The Chair of the committee deviated from the typical practice to alternate panels of witnesses testifying for or against the bill. Instead, she put all the proponents of RHEA first and all the opponents last – in a thinly veiled attempt to prompt attrition of the opponents. Despite this unprofessional finger on the scale, proponents testified for 3 hours, and opponents testified for 9 hours. The proponents were largely abortion rights activists representing abortion advocacy groups while the opposition were a diverse cross section of grass roots opposition to the bill. There was compelling testimony from Coloradoans that highlighted the ageist, sexist, ableist, and racist aspects of unrestricted abortion. We heard many stories of women who felt unsupported or deceived and deeply regretted their abortions. Many health care professionals testified to the biological incoherence and cruelty of abortion. There were those who testified to the risk to sex trafficked women in a state with unregulated abortion facilities. Ultimately, none of this made a difference. The bill passed out of committee along a strictly party-line vote – all Democrats in support and all Republicans in opposition.
After the bill was referred to the House Committee of the Whole for final passage, a Colorado record was established. The House debated the bill for 23 hours before it finally received a party-line approval. This was believed to be a General Assembly record for Colorado.9 The long debate focused Coloradoans attention on the radical bill -and may have ramifications for the upcoming November elections. It also showed how desperate pro-abortion advocates have become. They felt compelled to push false narratives to bolster their arguments – that without RHEA, women would die, that women with miscarriages or still births could not receive care, or they would be prosecuted, or that woman could not achieve equality with men.
The 13 ½ hour committee hearing was repeated in the Colorado Senate Judiciary Committee. There was a ratio of 3 to 1 in opposition to RHEA. The arguments were equally impassioned, and evidence based. Sadly, the outcome was the same – a party-line vote to support the bill. And after another prolonged debate in the Senate, the bill was on its way to the Governor’s desk.
Even though he is an adamant supporter of abortion rights, Governor Polis felt compelled to attach a signing statement to the bill assuring the electorate that the bill would not interfere with an existing Colorado regulation regarding parental notification or conscience protections. (A signing statement has no force of law). He has presidential aspirations and even he recognized how radical the bill is.
National pro-life leaders should take note. The abortion rights elite will continue to pursue their unholy grail – abortion at any time during pregnancy for any reason without regulations for health and safety. We all need to be prepared to educate the public on how truly extreme this is. The views of the abortion rights elite bear no resemblance to the views of most citizens. We need to “rehumanize” the unborn and break down the barriers that prevent pro-choice advocates from empathizing with both the woman and her preborn baby.
We also must be prepared to challenge this kind of legislation on several bases. Can a state legislature constitutionally deprive a whole class of human beings of all rights? Can a state usurp all local control and remove every barrier to the placement of abortion clinics in a community? Does a “fundamental right” to an abortion preclude the exercise of conscious rights? Does an abortion provider even have the authority to deny a woman an abortion – if they disagree? Can a parent have any input into the decisions of their minor children if it might “inhibit” the free exercise of this “right”? Should taxpayers be forced to pay for abortions for women who don’t have the resources to exercise this “right”?
Our work to undo the damage in Colorado is just beginning. Everyone across the country needs to be ready to address this ugly threat.
Supreme Court of the United States (2021, December 1). Oral Arguments. 19-1392_4425.pdf (supremecourt.gov)
Goodland, M. (2022, May 4). A Short History of Colorado’s Abortion Activism from 1891 to Present. Colorado Politics. A short history of Colorado's abortion activism from 1891 to present | Legislature | coloradopolitics.com.
Congress.Gov. Women’s Health Protection Act of 2022. Text - S.4132 - 117th Congress (2021-2022): Women’s Health Protection Act of 2022 | Congress.gov | Library of Congress.
General Assembly of the State of Colorado. Reproductive Health Equity Act. 2022a_1279_signed.pdf (colorado.gov)
Horn, Trent. “My Body, My Choice,” in Abortion: From Debate to Dialogue – The Interactive Guide, ed. Steve Wagner (Wichita: Justice For All, 2013), pages 95-106.
Cygnal. A Poll of Likely General Election Voters, Colorado Statewide. Conducted June 10-13, 2020.
Racioppi, D. (2022, January 10). NJ Bill Protecting Abortion Rights Passes, but Some Say it Doesn’t Go Far Enough. Northjersey.com. NJ abortion bill: What's in the Freedom of Reproductive Choice Act (northjersey.com)
Goodland, M. (2022, March 11). House Democrats Give Preliminary Approval to Bill Affirming a Right to Abortion after 23 Hour Debate. Colorado Politics. House Democrats give preliminary approval to bill affirming right to abortion after 23-hour debate | Legislature | coloradopolitics.com
Tom Perille, M.D.
Democrats for Life of Colorado