A federal judge heard arguments about Colorado’s controversial new ban on medication abortion reversal Monday as a Catholic health clinic seeks a court order to block the prohibition — even though state authorities already have said they will not immediately enforce the measure.
Colorado authorities have promised not to enforce the ban on medication abortion reversal until the state’s medical, nursing and pharmaceutical boards issue rules on the practice, expected by Oct. 1.
But attorneys for the clinic argued Monday that the state’s promise is insufficient, and said U.S. District Judge Daniel Domenico should also block enforcement while the legal challenge to the law is pending. Attorneys for the state countered that the temporary pause on enforcement means such a court order is unnecessary and redundant.
“The plaintiffs cannot show the imminent and irreparable harm that would entitle them to an injunction,” said Michael Kotlarczyk, an attorney for the Colorado Attorney General’s Office.
“The state says, ‘Don’t worry, we won’t enforce the law against you, for now,’” attorney Rebekah Ricketts said. “But what about later? We don’t know. That temporary, conditional, revocable period of non-enforcement is not nearly enough to bar plaintiffs at the courthouse door.”
The disputed law, SB23-190, states that health care providers are subject to discipline if they engage in medication abortion reversal, unless the Colorado Medical Board and the state boards of pharmacy and nursing publish new rules that explicitly allow the practice by Oct. 1.
Signed earlier this month, the new law was immediately challenged in a lawsuit by the Englewood-based clinic Bella Health and Wellness. The clinic argued the law violates its First Amendment rights and religious freedoms, and that the immediate enforcement of the ban would interrupt ongoing patient care.
The Catholic clinic offers progesterone to patients who want to keep their pregnancies after previously taking mifepristone to induce an abortion. The American College of Obstetricians and Gynecologists has said medication abortion reversal is not supported by science.
Domenico last week exempted the clinic from the ban for 14 days while arguments played out in court over longer-term outcomes, and Colorado Attorney General Phil Weiser then said his office would not enforce the ban until the three boards issued that guidance.
Denise “Dede” Chism, co-founder and CEO of the clinic, testified Monday that she felt the bill was specifically aimed at faith-based health clinics and that the state’s promise not to enforce the law seems tenuous.
“I have 68 employees. I care for over 6,000 people and 31,000 visits a year,” she said. “There is a lot at stake here for a small number of patients. I am willing to sacrifice everything for a life. But this feels very, very threatening. A promise is just a promise. I feel like I need something that is a little more concrete.”
Domenico indicated he would issue a written ruling sometime before Saturday, when the 14-day temporary restraining order expires. During Monday’s hearing, he questioned whether an injunction was needed given the state’s promise not to enforce the ruling.
“If I’m just enjoining the enforcement, and if they’ve already agreed not to enforce it, aren’t we doing the same thing? A belt or a suspenders?” the judge asked Mark Rienzi, attorney for the clinic.
“If it is, your honor, the suspenders are worth much more than a belt,” Rienzi replied, arguing that the state’s position on enforcement was non-binding and authorities could later decide to enforce the ban retroactively against the clinic. A court order would offer better and more clear legal protection to the clinic, he argued.
“What my client doesn’t want to do is get to September or October and get penalized for saving a baby’s life in April,” Rienzi said.
Kotlarczyk said the state’s position on enforcement should be taken at face value.
“We’re not trying to trick anybody,” he said. “We’re not trying to pull the rug out from someone and say, ‘Aha, we gotcha.’ …We’re really trying to meet the plaintiff halfway and say, ‘Look, you don’t have to worry about this bill while the rulemaking is happening.’”
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