The campaign to place an initiative that would ban abortion at 22 weeks on Colorado’s November ballot is promoting a false statistic about the frequency of Down syndrome diagnoses in patients who terminate pregnancies in an apparent attempt to frame later abortion care as disability discrimination.

In an article published on the anti-choice news website LifeSite in March, an unnamed spokesperson for the Initiative 120 campaign, called Due Date Too Late, said that “Colorado’s late-term abortion clinic” admits that a “quarter of late-term abortions are done because the child has been diagnosed with Down syndrome.”

That line was later repeated by the vice-chair of the Colorado Republican Party, Kristi Burton Brown, who’s also a prominent anti-choice activist, in an interview last month with conservative talk radio host Randy Corporon.

“Warren Hern, the main late-term abortionist in Colorado that operates out of Boulder, he publicly admits that one out of every four late-term babies he aborts, he aborts them because they’re diagnosed with Down syndrome in utero,” Burton Brown told Corporon. “This is even a targeting of the disabilities community, which I think a lot of people in Colorado would be super concerned about if they knew that was what was going on.”

Abortion care in Boulder

The clinic in question, the Boulder Abortion Clinic, is one of just a handful in the country that accepts patients from anywhere in the world for abortion care after 22 weeks of pregnancy. Hern, the clinic’s founder, is renowned for treating those with more complicated pregnancies, including a wide array of fetal diagnoses.

But publicly available data from the clinic, and Hern himself, dispute the claim that a quarter of abortions performed in his office are due to a Down syndrome diagnosis.

A study published by Hern in 2014 examines the 1,005 patients who sought abortion care due to fetal diagnosis, spontaneous fetal demise, and genetic disorder at his clinic over a 20 year period, with gestational ages ranging from 12 to 39 weeks.

“There were over a thousand patients and 160 different diagnostic categories that come up,” Hern said of the data, adding that some diagnostic categories pose serious health risks for the patient or are likely to cause perinatal death.

Of those 1,005 patients, 237 received a Down syndrome diagnosis, about one in four. But those 1,005 represent a fraction of the total number of patients who have terminated pregnancies at the Boulder Abortion Clinic.

The study states that the proportion of patients who terminated for reasons related to a fetal diagnosis has increased over time from 2.5 percent in 1992 to 30 percent in 2012.

“This increase reflected a gradual change in clinic policy to accept patients with more advanced gestations, more requests for late termination of pregnancy because of fewer options being available elsewhere, and advances in fetal diagnosis,” the study explains.

Given those numbers, less than 1 in 10 of Hern’s patients received a Down syndrome diagnosis in recent years. And it’s unclear whether the proposed 22-week ban would significantly impact those abortions, given that Down syndrome can be detected as early as 10 weeks into a pregnancy.

Some of Hern’s other patients are minors who have been sexually abused, he said. Some are struggling with addiction. Some are in abusive relationships.

“There are outer limits to what they can do with their lives, and they need to be able to end a pregnancy, and under those circumstances they should be able to do that without any interference from others who have a political agenda,” he said. “These are all personal situations that can’t be generalized, and women need to be able to make their own decisions.”

Many of the fetal diagnoses listed in the study cannot be detected until late in a pregnancy, usually around 20 weeks. The proposed ban makes no exceptions for medical conditions that could harm the patient’s health if the pregnancy is carried to term, or for rape or incest, only allowing abortions after 22 weeks if it’s absolutely necessary to save the patient’s life.

In the LifeSite article, Due Date Too Late also claimed that “a C-section is much safer than an abortion in most, if not all, emergencies,” something Hern disputes.

“It depends on the situation, but what we do, in most cases, eliminates the need for C section,” Hern said. “A C section causes permanent damage to the woman’s uterus, and the procedure we do at my office avoids that.”

Hern called the campaign’s attempt to frame later abortion care as a disability rights issue “another example of a cynical exploitation of a deeply personal private tragedy.”

Due Date Too Late did not reply to an email seeking comment.

Abortion and disability rights

Over the past few years, abortion foes have increasingly used appeals to disability rights to prop up abortion bans, often arguing that terminating a pregnancy due to fetal anomaly constitutes disability discrimination and even eugenics.

Similarly, arguments that abortion constitutes Black genocide, and the push for a ban on sex-selective abortion, signal an effort by the anti-abortion movement tap into the social justice sphere. This messaging is especially common in youth-led anti-abortion groups that are seeking to rebrand the movement to attract younger and more socially progressive supporters.

In 2013, North Dakota became the first state to ban abortion in cases of fetal diagnosis. Since then, such laws have increased in popularity and become a key tactic of anti-abortion groups like Americans United for Life that craft model legislation for state lawmakers.

Seven states currently ban abortion in cases of a Down syndrome diagnosis, including Arkansas, Indiana, Kentucky, Missouri, North Dakota, Utah, and Ohio. Four of those bans were passed in 2019 alone.

Ohio’s law, passed in 2017, has been facing a years-long legal battle after it was blocked by the 6th Circuit Court of Appeals due to its encroachment on the constitutional right to an abortion. In March, the case was granted a retrial before the entire court, which has since swung toward the right thanks to President Trump’s judicial appointments. The court has yet to make a decision.

But regardless of whether banning abortion in the name of disability rights is constitutional, some disability rights advocates say that such bans don’t benefit the disabled community.

“I don’t see this as a disability rights issue. This is an opportunity for anti-choice individuals to use disability as their pawn,” said Robyn Powell, an attorney and researcher at the Lurie Institute for Disability Policy at Brandeis University, in an interview with the Colorado Times Recorder.

Powell pointed out what she views as hypocrisy from abortion foes who purport to care about the disability community, but are nowhere to be found when that community is under attack.

Take, for example, the Republicans’ war on the Affordable Care Act, which prohibits various forms of discrimination by insurance companies that negatively impact people with disabilities, in addition to numerous other benefits. The ACA was unpopular among some anti-abortion conservatives due to the contraceptive mandate, and anti-abortion activists have been absent from the front lines of the effort to preserve the landmark health care law. And, in 2015, when Trump mocked a disabled reporter at a campaign event, anti-abortion voters most didn’t abandon him as a candidate.

“If they actually cared about the lives of people with disabilities, they would be supporting them to ensure that their rights are being protected and that they have access to the necessary services and supports,” Powell said. “If those services and supports were available more readily, people may feel more equipped to continue with their pregnancies.”

Powell, who is herself disabled, said that while she doesn’t like the idea of terminating a pregnancy because of a disability and believes that the medical establishment, in general, has a tendency toward ableism, “we can shift that attitude without taking away rights.”

Powell also explained that not only do the reproductive justice movement and the disability rights movement share common values — like bodily autonomy and the ability to choose — but that reproductive rights are a critical issue for the disabled community.

“Reproductive rights are something that people with disabilities have been fighting for for a long long time,” said Powell. “We saw that during the eugenics movement when people with disabilities were being involuntarily sterilized. Now people with disabilities are fighting to be able to keep their children.”

Backers of Initiative 120 are currently collecting signatures as part of a 15-day cure period after the Secretary of State determined in early April that they failed to gather enough valid signatures to meet the threshold to qualify for the ballot.

Due to COVID-19, the cure period was delayed, and began on May 15. The campaign needs to collect about 10,000 additional signatures to qualify.