When challenged in court, the state opted not to defend its ban on abortion-reversal pills and instead vowed not to enforce the law.
A new Colorado ban on abortion-pill reversal, which involves counteracting the effects of mifepristone by prescribing progesterone, is on pause for the time being after the state decided not to enforce it.
Senate Bill 190 banned doctors from offering progesterone in one circumstance only: when a woman has taken the first abortion pill, mifepristone, one part of the two-pill regimen that constitutes the most common method of procuring an abortion in the U.S. Progesterone is a naturally-occurring hormone that’s critical in every stage of a pregnancy: It thickens the uterine lining, nourishes the embryo, and protects the uterus from pre-term contractions. It can be prescribed for a woman who experiences recurrent miscarriage and it’s also routinely used to support IVF.
National Review spoke to Rebekah Ricketts, a Becket counsel representing a Catholic provider in Colorado which offers the treatment, to understand the constitutional issues at stake and what will happen next.
“Progesterone has been used safely in fertility care and care for pregnant women for decades,” explained Ricketts.
Mifepristone’s function during a medication abortion is to block progesterone, causing the uterine lining to deteriorate, blocking oxygen and nutrition. Thus, if a woman were to take the first pill and change her mind about the abortion before taking the second, which causes contractions which expel the pregnancy, a provider can prescribe extra progesterone to counteract the effects of mifepristone.
Ricketts said the state decided to unfairly target the prescription of progesterone in this one circumstance and it also banned the advertisement and publicizing of abortion-pill reversal.
To justify the ban, the state argued it is not safe, but according to Ricketts, “the other side hangs their hat on one failed, randomized trial.” The Becket counsel was referring to a study conducted by Dr. Mitchell Creinin, who has served as a paid consultant for the distributor of mifepristone, according to the application for a temporary restraining order. Creinin himself ultimately testified that his study was inconclusive as to whether progesterone treatment might work, conceding abortion-pill reversal could be effective.
“If anything the harm is from mifepristone, not from the progesterone that’s offered to counteract it,” Ricketts explained.
“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,” Ricketts said.
The complaint explained that the practitioners at the provider, Bella Health, 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, explains the complaint. Similarly, by targeting the speech of a pro-life provider, the law “constitutes an egregious form of viewpoint discrimination.”
Becket filed a lawsuit on the same day the bill was signed and asked for an emergency temporary restraining order because a woman had come into the Catholic provider that morning asking for abortion-pill reversal. It was then that the plaintiffs and their legal representatives saw something strange occur.
“The court grants that motion, sets everything for briefing, schedule, and hearing,” said Ricketts. “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.”
Given Colorado’s non-enforcement of the ban, U.S. district court judge Daniel Domenico said there was no need to block the first-of-its-kind ban, choosing not to address the merits of the case.
However, “the court in its order last week agrees to hold the government to its promises,” explained Ricketts, pointing out that Colorado can’t simply reverse course.
“We do think it’s very telling. When presented the opportunity to defend the law that the state had just passed, the state chose to run away,” Ricketts said.
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.
While enforcement is suspended for the time being, the situation is fluid and may change if the boards side with the state.
Ricketts lamented the situation, saying she is not aware of any other medical practice in the state of Colorado or anywhere else in the country that is subjected to a process that is so backwards.
“There is a possibility further litigation will be required,” Ricketts said, pointing out that there are still live claims.
“Given the way the state has decided to run away and not litigate the merits right now, we expect the rubber to hit the road on that sometime next fall unless the boards were to decide they picked the wrong fight here or that the legislature has picked the wrong fight,” Ricketts concluded.