Reproductive Health Care Rights in Colorado post-Roe v. Wade

While several noteworthy and significant decisions have been issued by the U.S. Supreme Court this term, none has garnered more attention and reaction than the recent decision to uphold the Mississippi abortion ban in Dobbs. V. Jackson’s Women Health Org., effectively overturning Roe. V. Wade which has protected the constitutional right to abortion for nearly fifty years. Despite the leak of Justice Samuel Alito’s majority opinion months earlier, and the knowledge amongst legal scholars and reproductive rights activists that Roe’s demise was imminent, the reality (and finality) of the decision was intensely shocking to many. Roe’s fall, and the deference in Dobbs given to states to enact legislation restricting access to abortion, has such far-reaching and decisive implications for women, men, families, and the health care system at large, that the true impact will not be known for decades. Irrespective of where an individual falls on the issue of abortion, it cannot be overstated that overturning a half century of established law, and the institutions and societal norms and expectations that have evolved because of that law, creates seismic shifts in how we operate as a nation.

A bright light in the chaotic aftermath of the Dobbs decision is Colorado’s successful efforts to protect women’s bodily autonomy and to serve, as anticipated, as a ‘sanctuary’ state for women unable to access reproductive health care in neighboring states. Many surrounding states have enacted ‘trigger’ laws banning or restricting abortion within a specified time after Dobbs; Colorado has instead taken substantial steps to defend individual freedoms and privacy, and to protect reproductive health care access for all.

Colorado’s Reproductive Health Equity Act (RHEA)

In anticipation of the Supreme Court’s overturning of Roe, Colorado passed House Bill 22-1279, the Reproductive Health Equity Act, signed into law by Governor Polis on April 4, 2022. The Act codifies reproductive rights for Coloradoans, confirming that: (1) all individuals have the fundamental right to make decisions about their reproductive health care including to use or refuse contraception; (2) pregnant persons have a fundamental right to choose to continue or terminate a pregnancy; and (3) clarifying that an embryo, fertilized egg, or fetus do not have independent rights under the laws of Colorado. Other key provisions of the Act include:

• Recognition of the importance of access to family planning in reducing health and socioeconomic disparities faced by people of color and low-income communities

• Recognition of the need to maintain access to reproductive health care in rural areas of the state where service providers are limited and there are greater limitations in obtaining care

• Acknowledgment of the role Colorado has played historically as a national model for reproductive health care management, including as the first state to de-criminalize abortion care prior to Roe v. Wade, and the consistent support of Colorado voters for allowing individuals to make their own ethical decisions about abortion care.

• Affirmation that a public entity, through the enactment of state and local laws, ordinances, policies, procedures, practices, etc. may not restrict, burden, interfere with or discriminate against the fundamental rights recognized in the Act.

Refusal to Cooperate with Criminal and Civil Investigations in Other States

In addition to the Reproductive Health Equity Act, the Governor also recently issued an executive order directing state agencies to protect access to reproductive health care in Colorado. The order aims to protect people working in Colorado from disciplinary action against a professional license for providing or seeking reproductive health care in Colorado or any other state. Importantly, the order makes clear that Colorado will not cooperate with criminal or civil investigations in other states for health decisions that are legal in Colorado. “I will exercise the full extent of my discretion to decline requests for the arrest, surrender, or extradition of any person charged with a criminal violation of a law or another state where the violation alleged involves the provision of, assistance with, securing of, or receipt of reproductive health care, unless the acts forming the basis of the prosecution of the crime charged would also constitute a criminal offense under Colorado law”, the Order states.

Embryo Disposition and Considerations for Assisted Reproductive Technology Law

On June 23, 2022, the Colorado Court of Appeals issued an important ruling in the case of In re Marriage of Olsen. This case involves the intersection of the law pertaining to the dissolution of marriage and assisted reproduction technology law, or ART. The couple in IRM Olsen undertook multiple rounds of in vitro fertilization (IVF) to have children. After successfully having twins, the couple were faced with what to do with the remaining two pre-embryos produced from the IVF procedure. At the time of their divorce, the wife sought to have the embryos donated based on her personal religious beliefs that human life begins at conception. The husband requested that the court order the embryos be discarded based on his desire not to have another couple raise his biological children. After multiple remands to the district court, the Court of Appeals ultimately found that the district court had incorrectly given more weight to the wife’s subjective belief that pre-embryos should be protected as human life more heavily than the husband’s interest in not procreating. The Court found that the district court had improperly analyzed the factors established in a prior embryo disposition case, In re Marriage of Rooks, and that in considering the interests of the parties, the balance instead leaned in favor of husband’s desire not to procreate and directed that he be awarded the embryos to be discarded. The Court emphasized that the wife’s religious beliefs should only have been considered as an additional factor, and not as part of the previously established factors weighed by the district court in making its determination as to the embryos.

Providing Resources for Those Impacted by These Changes

The embryo disposition decisions by the Colorado appellate courts are particularly important in light of legislation being proposed in states around the country that seeks to qualify the definition of when human life begins. Questions have arisen for physicians providing assisted reproductive technology as to whether, for example, the IVF process will be impacted as a result of these statutory changes extending the rights of personhood. For now, both the Colorado legislature and courts have clearly indicated an intent not to extend the definition of personhood beyond how it has been traditionally defined as life outside the womb.

It is certain, however, that Colorado will see a significant influx of individuals seeking reproductive healthcare from states where those services are now banned and severely restricted. Currently, Wyoming, Texas, Nebraska, Oklahoma, Arizona and Utah have restrictive abortion laws in effect. Colorado’s abortion clinics, of which there are estimated to be less than eighteen, will be the closest providers for the millions of women from those states. According to Planned Parenthood of the Rocky Mountains, providers in Colorado have indicated that they have already seen a substantial increase in women from other states seeking services in Colorado, particularly at the 12-week stage of pregnancy when providers can no longer offer medication abortion. The unprecedented increase in patient volume and resulting service constraints will undoubtedly disproportionately impact low-income women and women of color. There is now an even greater need statewide to provide support for and access to reproductive health care, including in many instances for adolescent girls and teenagers.

As a family practice law firm, we serve individuals and families as they navigate difficult transitions in their lives. While we don’t directly practice in the areas of reproductive justice or assisted reproductive technology law, we support families of all kinds and in all stages, including those that may be facing difficult choices regarding whether to continue or end a pregnancy or seeking different family planning options. We’ve composed the following list of resources/organizations that may be of interest to our clients, colleagues and community, for those who may be in need of care and looking for options and support themselves, or for those interested in volunteering or providing support for others in need.

Resources/Organizations

BOULDER VALLEY WOMEN’S HEALTH CENTER https://www.boulderwomenshealth.org/ This organization was founded in 1973 as the first independent abortion clinic in Colorado, and they accept donations to help people access the healthcare they need and deserve.

COBALT https://cobaltadvocates.org/ Formerly known as NARAL Pro Choice Colorado, Cobalt is Colorado's leading abortion fund and abortion advocacy organization. Cobalt provides monetary support to anyone seeking an abortion in Colorado, regardless of need.

COLORADO DOULA PROJECT https://www.coloradodoulaproject.org/ Colorado Doula Project (CDP) is an all-volunteer, woman of color led and run organization that provides practical support to those seeking abortion care in Colorado.

COLORADO ORGANIZATION FOR LATINA OPPORTUNITY AND REPRODUCTIVE RIGHTS (COLOR) https://www.colorlatina.org/ COLOR is a woman-of-color led and run, community-based organization dedicated to advocating for and expanding opportunity and reproductive rights for Colorado's Latina community.

IF/WHEN/HOW https://www.ifwhenhow.org/ If/When/How is a national organization of attorneys dedicated to reproductive rights, health, and justice advocacy.

NATIONAL WOMEN’S LAW CENTER https://nwlc.org/ A national legal advocacy group dedicated to gender justice and developing solutions to gender inequity.

PLANNED PARENTHOOD OF THE ROCKY MOUNTAINS https://www.plannedparenthood.org/planned-parenthood-rocky-mountains