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Efforts to affirm abortion access in Colorado won’t stop some lawmakers from trying to reverse course

Conservatives could run ballot initiatives to undermine so-called guarantees
Demonstrators gather to protest Senate Bill 8, the new Texas law banning abortion after six weeks into a pregnancy, on Sept. 4 at the Colorado Capitol. (Olivia Sun/The Colorado Sun)

Colorado Democrats are poised this year to pass a bill enshrining the state’s existing abortion access guarantees in law. But even if the yet-to-be-introduced measure is signed by Gov. Jared Polis as expected, existing threats to abortion access in Colorado would remain mostly intact.

Republicans would still have the ability to try to pass legislation or a ballot measure restricting the procedure.

And the GOP, whose state lawmakers this year have introduced bills that would severely limit who can get an abortion and require health care providers who perform abortions to report information about their patients to the state, are already vowing to do just that should Democrats’ abortion-access bill become law.

Colorado GOP Chairwoman Kristi Burton Brown speaks during a “Commitment to Colorado” news conference Aug. 9 at a Sinclair station in Denver. (Olivia Sun/The Colorado Sun)

“The Republican Party will always work to protect every child in love and in law,” Colorado GOP Chairwoman Kristi Burton Brown, who gained popularity within her party for her anti-abortion work, told The Colorado Sun.

Furthermore, if the GOP were to take back control of the statehouse and the governor’s mansion, members would have the power to repeal the proposed abortion-access law.

The abortion-access debate at the Capitol this year comes against the backdrop of questions about the future of Roe v. Wade, the 1973 decision prohibiting excessive government abortion restrictions. The U.S. Supreme Court could overturn the precedent in the coming months, potentially opening the door for abortion restrictions in Colorado on the county or municipal level.

“To affirmatively say: Here in Colorado you have the ability to make your own reproductive health care decisions is exceptionally important and would break new ground,” said state Sen. Julie Gonzales, a Denver Democrat who plans to be a prime sponsor of the abortion-access legislation.

Colorado State Sen. Julie Gonzales speaks during a news conference on Oct. 15, 2020, in Denver. (David Zalubowski/Associated Press file)

But because of the ongoing threats to abortion access in Colorado, many abortion rights groups are planning a bigger push in the coming years, possibly as soon as 2024, to pass a ballot measure enshrining abortion access in the Colorado Constitution.

Because the change would have to come in the form of a constitutional amendment, it would require the support of 55% of voters to pass, a higher bar than the simple majority needed to make law at the ballot box and at the state Legislature.

A constitutional amendment enshrining abortion access in Colorado would halt efforts at the Capitol to ban or limit the procedure, as well as similar efforts to change the law through ballot measures. Abortion rights groups have spent millions in recent years fending off the latter, including about $9 million in 2020 to successfully fight Proposition 115, which would have banned abortion after 22 weeks of pregnancy in Colorado.

Demonstrators gather to protest Senate Bill 8, the new Texas law banning abortion after six weeks into a pregnancy, on Sept. 4 at the Colorado Capitol. (Olivia Sun/The Colorado Sun file)

If abortion access were enshrined in the state Constitution, abortion opponents would be able to change that only by amending the Constitution themselves, a tall order that they’ve failed to achieve before.

“I think that there’s been a lot of conversations and a lot of want to change the state Constitution,” said House Majority Leader Daneya Esgar, a Pueblo Democrat who is also leading the push for the abortion-access bill at the Capitol this year. “But you know that takes a lot of work, that takes a lot of time. We’re out of time.”

Abortion rights advocates feel it’s necessary to pass a law ensuring abortion access in Colorado as soon as possible because of the Roe v. Wade uncertainty.

If Roe v. Wade is overturned by the Supreme Court, abortion access in Colorado, which in 1967 became the first state to loosen its abortion laws, wouldn’t be immediately affected. But there could still be threats.

The concern among abortion rights groups is that conservative counties or municipalities could try to pass local measures banning or significantly limiting abortions. Without the protections in Roe v. Wade, those local measures may not be challengeable in court without the passage of affirmative abortion-access legislation at the Capitol.

Karen Middleton, president of the Colorado abortion rights group Cobalt, said abortion access in the state’s rural communities could be particularly at risk.

Lawmakers are seen at the Capitol’s Senate floor on Jan. 12 in Denver at the start of Colorado’s General Assembly’s 2022 session. (Olivia Sun/The Colorado Sun file)

“Without having the fundamental right, what happens at the local or county or municipal level could be ratcheted up,” she said.

The bill at the Capitol this year will be “intentionally narrow,” Middleton said. It will serve as a set up for the ballot measure seeking to change the Colorado Constitution.

Middleton said her group’s main ballot-measure focus will be to repeal a constitutional ban on state funding being used for abortions. That was passed by voters in 1984.

“And we could be in a position to go beyond that,” she said.

She explained that if the state’s title board, which determines the legality of ballot measure language, allows a ballot question asking voters to both repeal the 1984 funding ban and to enshrine abortion access in the state Constitution then Cobalt and its partners would likely pursue that.

There is a rule in Colorado requiring that ballot questions be limited to a single subject, however, so it’s not clear that would be possible.

For the foreseeable future Middleton, Esgar and Gonzales see passing a bill ensuring abortion access as a big – and sufficient – first step.

“Asking the abortion rights community to consider shifting our bill to a ballot measure is – at its core – not only impractical, but it is asking us to spend millions of dollars that we do not have, when we don’t need to, and when a bill will meet our objectives,” Middleton said.

Esgar, meanwhile, doubts Republicans would be able to win back a majority and repeal the policy anytime soon.

“Making law is not that easy and changing law is not that easy,” she said. “They would have their constituencies to answer to if they tried to change this law. We have the support of the majority of Coloradans behind this issue.”

Even the biggest anti-abortion voices in the Capitol aren’t sure if Republicans would have the votes to overturn an abortion-access bill in Colorado if the GOP were to win back the majority.

“I don’t know,” said state Rep. Patrick Neville, a Castle Rock Republican who is sponsoring House Bill 1047 this year that would allow abortions only in limited circumstances in Colorado and otherwise make the procedure a felony. “It depends on what kind of Republicans we would have in the majority. Some are pretty weak on the issue.”

Colorado House Majority Leader Daneya Esgar makes a point during a news conference on the west steps of the State Capitol about legislative plans for the upcoming session Jan. 10 in Denver. (David Zalubowski/Associated Press file)

House Bill 1075, sponsored by state Rep. Stephanie Luck, R-Penrose, is the legislation that would require health care providers who perform abortions to report information about their patients to the state.

Republican state Rep. Andres Pico of Colorado Springs introduced House Bill 1136 this year, which would require sex education to include a five-minute, high-definition ultrasound video showing each stage of fetal development.

All three measures are expected to be rejected at their first committee hearing.

Gonzales said the threats to abortion rights posed by Republicans are “why majorities matter.”

“Other states are looking to Colorado as a model on how to proactively go and move forward (with) these types of measures,” she said.

The Colorado Sun is a reader-supported, nonpartisan news organization dedicated to covering Colorado issues. To learn more, go to coloradosun.com.