After the Dobbs decision, states have scrambled to establish what level of abortion access reflects the values, interests, and public health goals of their people. Some states have chosen to limit access to very uncommon circumstances – including rape, incest, life-limiting fetal anomalies, and the health/life of the mother. Others have taken a more expansive approach. Colorado is one of them.
In 2022, the Colorado legislature passed the Reproductive Health Equity Act (RHEA) which established unrestricted abortion as a fundamental right and prohibited anything that would “interfere” with the exercise of that right. There are only two abortion restrictions that remain and are permissible under RHEA. Abortion providers are required to notify the parents of minors at least 48 hours prior to a scheduled abortion. (Parental consent is not required.) And the state is prohibited from using public funds to directly/indirectly finance access to abortion except for rape and threats to the life of the woman.
Now, abortion advocates have gathered enough signatures to place Initiative 89 on the ballot in November to enshrine unrestricted abortion in the state constitution and remove the ban on public financing. They argue that this is necessary to ensure that future legislatures don’t meddle with the fundamental right to abortion.
What may be underappreciated is the unintended consequences of such an approach.
Most Coloradoans assume that Initiative 89 is the equivalent of implementing the Roe v. Wade decision at the state level. Roe specifically allowed regulation of abortion in the second trimester to ensure the health and safety of women. It also said that abortion could be restricted in the third trimester because the state had a compelling interest in protecting the life of a viable baby. Initiative 89 has neither of these features.
Few Coloradoans we encounter are aware that an estimated 3.2% of abortions in Colorado last year occurred after the absolute limit of fetal viability – 21 weeks of gestation. Even less understand that 70% (hundreds) of these later abortions are performed on healthy women with healthy babies each year. Some may be surprised to learn that, according to an Atlantic interview with Dr. Warren Hern who said he has performed two sex-selection abortions in his decades-long career, late abortions for sex selection can occur.
Initiative 89 would preclude the Colorado legislature from making any course corrections. They would be barred from a future choice to protect the viable fetus for social or economic reasons. They could not limit abortions for sex selection.
Fetal anesthesia is the standard of care for the thousands of fetal surgeries that occur each year in the country. Some jurisdictions have translated this concern for fetal pain to abortion by establishing fetal anesthesia requirements for late abortion, but not Colorado.
The preferred second-trimester abortion technique is a dilation and evacuation (D&E), and according to research, this procedure is often done without killing the pain-capable fetus before the fetus is dismembered and removed. A third-trimester abortion technique is a dilation and extraction (D&X) which involves poisoning the fetus, usually with digoxin, prior to extracting the corpse. Digoxin kills slowly – causing the fetus to endure minutes to hours of anguishing nausea, vomiting, and delirium.
Initiative 89 would prevent the medical community or the legislature from enforcing guidelines for fetal anesthesia or restricting late abortion procedures that cause gratuitous suffering.
Since Initiative 89 prohibits anything that “impedes” access to abortion, parental notification for minors and the implementation of prudent public health and safety standards to protect women at abortion clinics would likely be another casualty of the measure.
Parents would be excluded from the most consequential decision of their young teenage daughter’s life. And without parental notification, one of the key tools to identify young victims of human trafficking would be removed.
In 2013 media trackers investigated the oversight of abortion clinics in Colorado after a malpractice lawsuit against Planned Parenthood raised concerns. They found that abortion clinics are not held to the same standard as other healthcare and outpatient surgical clinics. This has resulted in the bizarre reality that places like the Boulder Birth and Holistic Health Center which serves low-risk women is licensed, regulated and inspected by the Health Facilities division of the Colorado Department of Public Health and Environment, but the Boulder Abortion Clinic down the street which performs high-risk third-trimester abortions has no oversight whatsoever.
Finally, Initiative 89 would potentially shift millions of precious taxpayer dollars from high-priority areas such as education, affordable housing, and the environment to underwrite abortion.
Yet, late abortions are a clarion call for more social/financial support during pregnancy — resources to allow parents the right to bear children. Initiative 89 would be a disincentive to tackle the real solutions for women facing the agonizing decision to have an abortion so late in their pregnancy.
Abortion access is already the law of the land in Colorado. Initiative 89 is unnecessary and would tie the hands of the legislature. Even worse, it may lead to many serious unintended consequences.
Frances Rossi and Tom Perille, MD, are founding members of Democrats for Life of Colorado which advocates for the value and dignity of every human life.
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Originally Published: July 23, 2024 at 10:26 a.m.
