As the U.S. Supreme Court prepares to hear a case that could do away with or weaken the constitutional right to an abortion, Colorado is situated among states with highly restrictive anti-abortion policies that could cut off access to the procedure for their residents if Roe falls.
Colorado is considered an abortion safe haven due to its lack of restrictions on abortion, so the state could have a critical role to play for people across the country who are seeking abortion care in a post-Roe America.
And while people already travel to Colorado from all over the country for abortion care due to laws in other states that make abortion inaccessible, particularly for abortions later in pregnancy, it could eventually become one of the only states in the region where abortion is legal at all depending on the outcome of Dobbs v. Jackson Women’s Health Organization.
The case concerns a Mississippi law banning abortion at 15 weeks of pregnancy, a direct challenge to Roe v. Wade’s ruling that abortion cannot be heavily restricted prior to viability, which usually occurs around 24 weeks, though there’s no hard and fast line. Upholding the Mississippi law means delivering a devastating blow to Roe, and while it’s difficult to predict the outcome, both abortion rights advocates and foes see the case as the likely beginning of the end of the federal right to an abortion.
Over half of women live in states that would likely ban abortion if that happens, and it’d be up to Colorado and a handful of other states that are considered abortion safe havens–including states on the East and West coast and a handful of states in the central U.S.–to provide access for huge pockets of the United States.
For example, many states in the region, including Utah, Idaho, Texas, Missouri, Oklahoma, and North and South Dakota have so-called “trigger bans” that would prohibit abortion immediately if Roe were overturned, some of which were passed this year.
Some states, like Utah, Idaho, and Arizona, have gestational bans on abortion occurring after 15 weeks but prior to viability that have been blocked by courts but could take effect depending on the outcome of the case.
Arizona doesn’t have a trigger ban, but does have a law on the books from before Roe was decided that bans abortion. Roe made the law unenforceable, but state officials could choose to enforce it if the court reverses Roe.
New Mexico had a similar pre-Roe abortion ban on the books up until this year when state lawmakers repealed it, a move that cemented New Mexico’s status as an abortion care safe haven in a potential post-Roe America. If Roe falls, Colorado, New Mexico, and Nevada will serve as islands of abortion access in a sea of hostility that spans the West, the Midwest, and the South.
A Fresh Onslaught of Restrictions
Even before the court’s announcement in May that it would hear the Mississippi case, anti-abortion state lawmakers were delivering a sustained assault on abortion rights and access. Now, they’re as emboldened as ever by the possibility that once-unconstitutional measures could be upheld by an increasingly conservative judiciary at all levels of the federal court system, thanks to the Trump administration and former Senate Majority Leader Mitch McConnell’s unprecedented focus on nominating and confirming hundreds of judges. As a result, it’s been the worst year on record for abortion rights as 2021 state legislative sessions draw to a close.
Those legislators passed a whopping 90 abortion restrictions this year alone, more than any other year since Roe was decided in 1973, according to a report from the Guttmacher Institute.
“The 2021 abortion restrictions amplify the harm of earlier ones,” the report states. “Each additional restriction increases patients’ logistic, financial and legal barriers to care, especially in regions where entire clusters of states are hostile to abortion.”
Colorado is surrounded by these clusters.
“Our doors are open and we’re not going anywhere, but the thing we’ve been worried about and have warned people about for years is happening,” said Jack Teter, Regional Director of Government Affairs for Planned Parenthood of the Rocky Mountains (PPRM), which encompasses Colorado, New Mexico, Wyoming, and Southern Nevada.
Teter pointed out that Colorado, New Mexico, and Nevada already serve a high number of out-of-state patients, including patients from nearly every state in the country, due to restrictions that are currently in place. He said the demand for abortion access in Colorado is only going to increase.
For example, when Texas lawmakers ordered abortion clinics to shut down in the spring of 2020 as covid-19 began to ravage the United States, PPRM saw a 1200 percent increase in patients from Texas, according to Teter, which provided a snapshot of what a post-Roe future could look like.
“These barriers to access disproportionately harm women of color, rural folks, and undocumented patients,” Teter said. “For many of our patients for whom healthcare broadly and reproductive health care specifically has been historically out of reach, this will make it even worse for those communities.”
Anti-abortion state lawmakers are doing everything they can to restrict abortion and pass laws that might be unconstitutional now, but could be enforceable later depending on the Supreme Court’s decision.
“They’re limiting abortion access to the highest extent that they constitutionally can, which is strong indication that as soon as they can do more, they will,” Teter said.
In Texas, lawmakers shocked abortion rights advocates and legal experts with a first-of-its-kind abortion restriction that deputizes citizens to enforce a ban on abortion.
The law, which passed in May and is set to go into effect Sept. 1, not only bans essentially all abortions prior to six weeks of pregnancy, but enables private citizens to sue anyone who performs or helps someone obtain an illegal abortion and awards them at least $10,000 if they win the lawsuit. It essentially creates an abortion bounty hunt, providing an incentive for citizens to catch their neighbors, friends, classmates, and coworkers in the act of violating the ban, including by helping someone pay for a procedure, providing information about where they can get one, or simply giving them a ride.
The scope of the law is far-reaching, and it’s unclear what kind of impact it could have on Texas patients attempting to travel out of state to seek abortion care and whether they’ll be able to get the logistical and financial support they need.
“All of that uncertainty and fear, it creates a chilling effect for patients, it scares their friends, and it creates a situation in which someone might say, ‘hey can you drive me to my appointment,’ and someone’s like, ‘I don’t know, can I?’” said Teter. “It’s horrifically cruel.”
It’s a new, untested approach to restricting abortion that may be copied by other states who are seeking to criminalize care. And Teter says this is just the beginning.
“This is just starting,” he said. “The Supreme Court decision hasn’t even happened yet. This is the first pass. This is the first legislative session.”
Oklahoma and Idaho also passed bans on abortion at six weeks this year, in addition to a slew of other restrictions. Several states, including Arizona, Oklahoma, Arkansas, and Montana, passed restrictions on abortion via telemedicine, which allows abortion medication to be prescribed remotely and picked up at a local health center or delivered via mail.
In many states in the region, people seeking abortion medication, a safe and effective method for ending early pregnancies, will have to drive potentially hundreds of miles simply to take a pill in a doctor’s office. That, of course, requires that you have a car and can afford gas, or have the ability to buy a plane ticket.
In some states, the landscape of abortion rights and access shifted this year due to Republican election wins.
Montana Governor Greg Gianforte’s 2020 election win, for example, gave Republicans total control over state government for the first time in 16 years. As a result, lawmakers in Montana, where over half of all women live in a county without an abortion provider, passed several anti-abortion measures, including restricting abortion to 20 weeks or earlier, prohibiting health insurance plans purchased through the state exchange from covering abortion, banning abortion via telemedicine, and requiring abortion providers to offer patients the option to view an ultrasound, a measure designed to shame and coerce patients.
While Montana’s constitution affirms the right to an abortion, meaning abortion would be legal in Montana if Roe fell, lawmakers have demonstrated that they’ll restrict abortion in any way they can to the extent that the constitution allows. In fact, they nearly passed an initiative that would have asked voters to add a constitutional amendment that defines life as beginning at conception and would have banned all abortion, but were just five votes short.
A Grave Threat in Kansas
The situation in Kansas is similar to that of Montana: while these states have abortion protections in their constitutions, anti-abortion lawmakers are in charge, and they’ve shown they’ll do everything in their power to strip reproductive rights from their constituents.
In Kansas, voters will soon be asked to decide on a ballot initiative that would amend the state’s constitution to explicitly state that there is no right to an abortion.
The measure, which was just barely approved by a two-thirds majority in Kansas’ Senate, would overturn the Kansas Supreme Court’s 2019 decision that declared abortion a “fundamental right” under the state’s bill of rights. While the measure doesn’t explicitly ban abortion, it adds language to the constitution declaring that abortion rights are not protected and that state lawmakers can regulate it as they see fit. Given the strong anti-abortion majority in Kansas’ legislature, a ban on abortion is implied.
“This could pave the way for all-out bans or other types of laws that block access,” said Myfy Jensen-Fellows, Volunteer and Community Engagement Manager for Trust Women, which runs abortion clinics in underserved communities in Kansas and Oklahoma. “We know that this is particularly devastating for marginalized communities. Many people already have to travel great distances, outside of their communities, to access care.”
What’s more, the measure will appear on the state’s August 2022 primary ballot, something abortion rights activists say is all the more concerning.
“The date of this ballot measure is a strategic move,” Jensen-Fellows said. “There tends to be a much lower voter turnout during primary elections, which in Kansas tends to favor Republican turnout.”
While voters who are not affiliated with a major political party are not allowed to vote for candidates in primary elections in Kansas, all registered voters in the state are eligible to vote on statewide ballot questions, something Jensen-Fellows has been a source of confusion.
“While we believe there is a path forward, there is a need for public education on the matter and get out the vote efforts,” she said.
How Safe Are Our Rights in Colorado?
Colorado’s shift to the left has brought about significant policy change when it comes to reproductive rights, but the state has yet to enact abortion protections in state law, meaning that while the state has relatively few restrictions on abortion, it doesn’t guarantee abortion rights independently of Roe.
But with pro-choice majorities in Colorado’s House of Representatives and Senate, in addition to the Governor’s Mansion, it’s highly unlikely that the state would enact a law restricting abortion.
For Teter, Colorado’s lack of a law that affirms abortion rights isn’t a cause for concern given the state’s history of protecting those rights at the ballot box and at the Capitol.
“Abortion access is safe here,” Teter said. “It’s safe here because the voters in this state have demonstrated multiple times that they’re not interesting in banning abortion or making it difficult to access. It’s safe here because of our strong legislative majorities.”
He has a point: While these kinds of constitutional and statutory abortion protections can serve as a backstop if Roe falls, even states that do have them, like Montana and Kansas, are under threat when anti-choice state lawmakers who search for every possible avenue to restrict abortion are in power.
Teter said that while pro-abortion rights lawmakers in other states are forced on the defensive, Colorado’s political landscape affords advocates the opportunity to focus their efforts instead on expanding reproductive health access, particularly for underserved communities.
“In Colorado, where we know that both public opinion and political majorities support access to abortion care, we can instead focus on expanding access for patients,” Teter said.
For example, this year, Colorado passed legislation that provided contraceptives for undocumented immigrants, expanded abortion access for sexual assault survivors, set clearer health care standards for pregnant women who are incarcerated, and more.
Teter said it’s about making sure our house is in order and that Coloradans are cared for as we prepare for a post-Roe era. That way, we can focus more of our efforts on helping the woman driving hundreds of miles from Bismarck to Denver for care.