Colorado Voters Could Determine Abortion Access Nationwide (Updated)

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Analysis Abortion

Colorado Voters Could Determine Abortion Access Nationwide (Updated)

Susan Rinkunas

Proposition 115 would ban abortions after 22 weeks except when the pregnant person’s life is immediately threatened.

UPDATE, November 5, 10 a.m.: Colorado voters rejected Proposition 115.

Amy Lynn learned about a severe neural tube defect during her 20-week ultrasound in 2008. She got an appointment with a perinatologist in Denver the next day and saw a pediatric neurosurgeon the day after that. In her 21st week of pregnancy, she had a dilation and evacuation abortion.

Lynn said she and her husband were “incredibly lucky”: to get the specialist appointments so quickly, to live near those providers, and to have family help pay for the procedure when insurance initially denied it. Even so, her procedure was just a day or two before the abortion cutoff that a November ballot initiative seeks to impose in Colorado.

“The day that my son died, I was 21 weeks and five or six days,” Lynn said. “And that was only because we were able to get appointments back-to-back; that’s so incredibly highly unusual.”

Lynn said she knows people who’ve had normal scans at 20 and 22 weeks only to face tragedy. “And then, bam, at 24 or 25 weeks, all of a sudden the [fetus’] brain matter is gone and their skull is full of fluid. And those families would be left with absolutely zero option” if Colorado voters approve the ballot measure, Lynn said. “To be blunt, they’re screwed.”

Sex. Abortion. Parenthood. Power.

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Colorado is one of seven states that doesn’t have a gestational limit on abortion care. Proposition 115, which mirrors a Colorado House bill that failed in committee this session, is a citizen-led ballot initiative that would create a state law banning abortions after 22 weeks except when the pregnant person’s life is immediately threatened. It has no exceptions for fetal anomalies or pregnancies resulting from rape or incest.

Abortion later in pregnancy is rare—about 1.3 percent of abortions in the United States occur after 21 weeks of pregnancy, while almost 90 percent happen in the first 12 weeks, according to the Guttmacher Institute. But anti-abortion groups are increasingly focused on this small fraction of procedures.

People have later abortions for several reasons: fetal anomalies diagnosed in the second and third trimesters, life-threatening pregnancy complications, pregnancies resulting from rape or incest, and logistical or financial barriers to getting care in hostile places like Texas and Louisiana that push pregnant people past the gestational limit in their state.

Proposition 115 is Colorado’s fourth anti-choice ballot initiative in 12 years. The previous three, efforts to establish fetal “personhood” in the state constitution, were roundly defeated. After those failures, anti-abortion lawmakers and activists refocused on a new type of ban that could potentially succeed with voters, said Elisabeth Smith, chief counsel for state policy and advocacy at the Center for Reproductive Rights.

Organizers of the ballot initiative call it a “reasonable limit” on abortion. But providers, patients, and advocates point out that an arbitrary ban is harmful and cruel.

“I cannot convey enough how medically inappropriate a one-size-fits-all, line-in-the-sand ban is,” said Dr. Kristina Tocce, medical director at Planned Parenthood of the Rocky Mountains. “Every patient and every pregnancy is unique, and care needs [to be] individualized.” Further, some pregnancies will never be viable, Tocce said.

Dusti Gurule, executive director of Colorado Organization for Latina Opportunity and Reproductive Rights (COLOR), the state’s only Latina-led reproductive justice organization, urged people to consider the lives of those who will be hit hardest if Proposition 115 passes.

“At the end of every policy decision is a person who lives with it, who makes the decision with their families, friends, medical providers,” she said.

The impact of abortion bans fall hardest on women of color, who are paid less than white women and are more likely to lack health-care coverage in the first place, Gurule noted. People who have low enough incomes to qualify for Colorado’s Medicaid program already cannot use their insurance for an abortion. The obstacles to getting care can multiply: possible language barriers, no paid time off work, lack of transportation, childcare for kids they may already have, fear of seeking care due to anti-immigrant rhetoric.

Empathetic people should be able to understand why someone wasn’t able to afford an abortion until 22 weeks, Gurule said. “We can’t assume that people are living a life as easy as maybe it is for some of us.”

‘Place of last resort’

If Colorado residents had to travel out of state for later abortions, the costs would only increase, putting care out of reach for many.

Dr. Warren Hern, whose Boulder Abortion Clinic has operated since 1975, is the only Colorado provider specializing in later abortion care. Hern said he treats people from all over the United States; about ten percent of his patients are from Canada, while others come from Europe. In mid-September, his clinic cared for a woman from Australia.

“These are complicated situations, and people who have nothing to do with the patient have no business interfering with their access to abortion care,” Hern said. “A lot of people think, ‘Oh, it’d be reasonable to limit abortion [after 22 weeks].’ Well wait a minute, this ignores the woman’s situation, and the anti-abortion people make it all about the fetus, which they call a baby, an unborn child, which of course it’s not. … I think that they see the woman as simply a passive vessel for the fetus.” He called Proposition 115 a “repressive, totalitarian measure.”

While the personhood amendments were easily defeated, Hern said he’s worried about this vote since many don’t know the reasons why people need abortions later in pregnancy.

“Unless people understand how bad it is, the anti-abortion religious fanatics will go out in droves and get it passed,” Hern said. “We need to help people understand why it’s so critically important for women to be able to make this choice.”

Karen Middleton, president of Cobalt (formerly NARAL Pro-Choice Colorado), said the advocacy group is trying to educate voters on both why people have later abortions and why the opposition is targeting Colorado specifically—and using misleading tactics to do it.

“For people all over the country, this is often their place of last resort,” Middleton said. Anti-choice activists’ “big-picture political scheme is to shut off access in states where abortion care is available to try to eliminate access to abortion altogether.”

Three Colorado women who’ve had later abortions said they’re angry that anti-choice activists are politicizing the difficult decisions they made and trying to interfere with people’s health and lives.

Rhonda Pohlman, who ended her nonviable pregnancy in 2006 at 21 weeks and six days, called Proposition 115 “absolutely terrifying.” Her son had a large cyst separating the two halves of his brain, and she was told that he would likely suffocate in utero. If the 22-week ban were to become law, then in cases like hers, the state would essentially be taking the position of “too bad, but we’re just gonna let the baby die in utero and then hope to god you don’t get sick,” she said.

“These are complicated situations, and people who have nothing to do with the patient have no business interfering with their access to abortion care.”
-Dr. Warren Hern

Pohlman is a pharmacist, but she said that even with a medical background, she had to read the text of the ballot measure two or three times before understanding it. She worries that voters will glance at it and vote yes.

“If they just look at the surface and they don’t think of the decisions that go into it, and the people that they potentially are affecting, I absolutely can see how people will be like, ‘Oh, well yeah this [proposition] makes total sense,” she said.

Lynn noted that a ban on later abortions with no exception for fetal diagnoses would be unspeakably cruel for visibly pregnant people interacting with well-meaning strangers asking about due dates and the baby’s sex.

“To have that happen knowing that my baby is dying would add just an incredible level of trauma—I can’t even explain that,” Lynn said. “I would not have wanted to leave my house, I would have become a hermit.”

Even in cases that don’t involve fetal anomalies, Lynn said people have ideas about later abortion that are detached from reality. In fact, these procedures are difficult to schedule and astronomically expensive. Plus, she pointed out how anti-choice clinics, commonly known as crisis pregnancy centers, mislead people by giving them incorrect gestational ages or telling them they have lots of time to make a choice.

“No decision to have an abortion, especially later in pregnancy, is taken lightly,” Lynn said. “And the further along you are, the more expensive that procedure is. It’s not $500 or $600 at the local Planned Parenthood—it’s $10,000 to $25,000 at a clinic out of state. That’s a huge amount of money.” People are not waking up 30 weeks into pregnancy and deciding they want an abortion.

If Christina Taylor had still lived in Texas when she learned at 20 weeks pregnant that the fetus she was carrying had no kidneys or bladder and there was no amniotic fluid in her uterus, she wouldn’t have been able to have an abortion in her state. She would have had to travel or continue carrying the pregnancy until the fetus was likely crushed by her organs, her doctor told her.

But she had moved to Colorado a few years prior and was able to have an abortion at 21 weeks. So many things fell into place: She got second-opinion appointments immediately, her insurance covered the procedure, and her retired mom could come take care of her other kids.

“It really scares me that they have this [proposed ban] at 22 weeks,” Taylor said. Though she is Latina, she acknowledges some privileges from being middle class and seeking this care alongside her white husband. She sees how barriers to abortion could put care out of reach for other people who look like her.

“I am very able to imagine if my life was a little bit different, how much more difficult this would be—having financial ability to do this, having the insurance, having the family support,” Taylor said. “It could be so much worse.”

Taylor said she has a certain level of guilt knowing later abortion in the case of a nonviable pregnancy is “the more palatable one” to some voters, but she doesn’t think her abortion is any more justified than anyone else’s; she fully supports other people’s freedom to choose when or when not to be pregnant.

Preparing for the worst-case scenario

If Proposition 115 were to pass, it could have ripple effects far outside of Colorado. For one thing, people out of state travel there for abortions later in pregnancy; any federal lawsuits challenging the measure could lead courts to revisit the central holding of Roe v. Wade: that states can’t ban abortion before fetal viability, thought to be around 24 weeks.

Cobalt is doing everything it can to get people to vote no, including text banking, phone calls, mailers, digital ads, and several weeks of TV ads. Still, if the proposition succeeds, the group’s abortion fund has become more nimble during the COVID-19 pandemic by helping people with practical support like rides and grocery deliveries. Middleton acknowledged that as a worst-case scenario the group would help people try to get care nearby. (Neighboring New Mexico is one of the other states without a gestational limit.)

COLOR plans to contact close to 200,000 Latinas and their families by phone and mail to educate voters about abortion later in pregnancy and explain why states shouldn’t be banning any kind of health care.

If Proposition 115 were to pass, Gurule said COLOR would be interested in challenging it and even bringing the issue back to the ballot if necessary. But the group, she added, would also support abortion funds to help people who would need to leave the state to get care.

If the measure passes, legal challenges will be fraught.

“We’re in a very precarious position,” Smith said. Following the death of liberal Justice Ruth Bader Ginsburg, “we are potentially looking at a 6-3 majority on the court of justices opposed to abortion rights.”

While 22 weeks is before fetal viability and any abortion ban at that point is thereby unconstitutional, “we get back to the question of what the Supreme Court will look like and who will fill Justice Ginsburg’s seat,” Smith said. Depending on what happens with the Court, advocates might choose to challenge the law at the state rather than federal level.

Middleton said the makeup of the Supreme Court gives her pause on whether Cobalt would challenge a successful ballot measure. But Hern, the Colorado doctor who provides later abortion care, pledged to fight the ban if it passes: “I will be there with attorneys to challenge this in court on the first day.”