By Dave Andrusko
This may be a first but, whether it is or not, the decision by the state of Colorado not to enforce its newly passed ban on abortion pill reversal is aptly characterized by this headline from National Review Online: “Colorado Runs Away From Enforcing Its Own Ban on Abortion-Pill Reversal.”
The law – SB 23-190 –was passed on April 14 and taken to court the same day by Bella Health represented by the Becket Fund for Religious Liberty. Abortion Pill Reversal can save an unborn baby’s life if his or her mother does not take the second of two drugs (misoprostol) and instead takes progesterone to counteract the effects of the first drug (mifepristone).
According to Jeff Zymeri of National Review Bella Health’s complaint is that it
sincerely believe that they are religiously obligated to assist any woman facing a threat of miscarriage who requests their help. By putting those who work there at risk of losing their licenses and of facing crushing financial penalties, Bella’s free exercise rights are violated. Similarly, by targeting the speech of a pro-life provider, the law “constitutes an egregious form of viewpoint discrimination,” argued the complaint.
U.S. District Judge Daniel D. Domenico initially issued a temporary restraining order and held a preliminary injunction hearing last week.
Rebekah Ricketts, counsel for Bella Health, told Zymeri “We filed suit alleging a long list of constitutional problems with the statute, but the key claims are First Amendment claims: that the statute targets religious actors, that it regulates speech based on content and viewpoint, and also that it forces women to continue abortions that they want to stop.”
The court “grants that motion, sets everything for briefing, schedule, and hearing,” Ricketts told Zmeri. “The state when it files its response to the motion for a temporary restraining order does not defend the constitutionality of the law. They come into court and say we promise to act like the law doesn’t exist. We promise not to enforce against Bella or against any other licensee pending these rule makings by the medical boards in the fall.”
As a result, Judge Domenico denied the request for a preliminary injunction last Friday “because the Colorado Attorney General’s Office has pledged not to enforce a new law until the state medical board has weighed in on whether abortion reversal treatment meets professional standards of practice,” according to Amanda Pampuro of Court House News.
Judge Domenico trusted the state’s promise.
“A preliminary injunction is not necessary, and therefore not appropriate, at this time because the defendants have represented to the court that they are treating SB 23-190 as if it were not yet in effect and has not changed preexisting law,” Judge Domenico wrote in a 7-page order.
“While there is room for lawyerly quibbling with some of the language used in the defendants’ declarations, I am satisfied that the defendants’ intent and commitment to the court is that they will preserve the status quo ante SB 23-190 at least until the rulemaking process contemplated by the bill takes place,” Domenico wrote. “Since the sole purpose of the plaintiffs’ requested preliminary injunction is to preserve that status quo, it is not warranted.”
The state’s actions probably reflect their confidence that they have an ace in the hole. “The issue will now go to the state’s medical, nursing, and pharmacy boards in the fall. The statute considers abortion-pill reversal unprofessional conduct unless these state boards agree it’s a generally accepted practice,” Zmeri wrote.
“While enforcement is suspended for the time being, the situation is fluid and may change if the boards side with the state.”