Q&A: Protecting Abortion Rights for Coloradans

Texas. Idaho. Oklahoma.

As Republican-controlled legislatures rush to pass restrictive abortion bills, Colorado is preserving the right in state law.

This summer, nearly 50 years after the landmark Roe v. Wade ruling by the U.S. Supreme Court, the high court is expected to rule again.

In anticipation of a potential overhaul, Colorado passed the Reproductive Health Equity Act. The bill, which triggered one of the longest debates in state history, passed both chambers along party lines. Democratic Gov. Jared Polis signed it on April 4.

In a conversation with the DU Newsroom, political science professor Josh Wilson explains what it means for Coloradans.

This conversation has been edited for clarity and brevity.

The Colorado legislature passed a bill to guarantee abortion rights. Specifically, what does the bill lay out?

The bill does a few things. One is that it secures the right to accessing abortion in Colorado and tries to cut off any state or local action that's meant to restrict abortion access. The other is that it tries to address the personhood approach to regulating abortion that we've seen in Colorado and elsewhere. That's an attempt to try to give personhood status to a fetus or an embryo , to indirectly regulate abortion by applying to fetuses the laws that would apply to people. It's working on two levels there.

Can you explain the personhood approach?

This Colorado abortion rights bill is saying you can’t conceive of the fetus as a rights-bearing individual. It’s explicitly targeting that approach by anti-abortion activists.

Colorado is one of the states without pregnancy term restrictions. Does this bill add anything?

This bill doesn't change the lived reality of Colorado right now. The bill makes more sense if you consider it in a larger context, if you consider it in a national context.

Can you give a brief background of the national context?

Protecting abortion rights has really risen in priority for Democratic voters since 2016, plus or minus. When Trump became president and began to restructure the Supreme Court, to create what is now a conservative supermajority on the court, it made the threat to Roe v. Wade far more real, far more likely, in a way that it hasn’t been in decades.

You have to see this law as a response to those larger national trends, so the lived reality in Colorado isn't going to change if this bill becomes law. Rather, it's a way to respond to likely changes in the future.

In December, the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health that could circumvent Roe v. Wade. What is that case arguing?

Dobbs v. Jackson Women’s Health is disputing the constitutionality of Mississippi’s Gestational Age Act, which bans abortion in the state after 15 weeks. This ban is at odds with the viability standard that the court established almost 30 years ago. Viability is typically understood as being around the 23- or 24-week mark, so this sets a ban roughly two months before this established point. While the case has clear bearing on the future of abortion access, providing a means for the court to increase the scope of state restrictions, or even overturn the right to abortion altogether, it was quickly apparent in oral arguments that the case was about more than this perennial hot-button political issue. It was also about the legitimacy of the Supreme Court itself.

Would the Colorado law secure abortion access in the long term, or could it change?

Just as Democrats are trying to pass this law now, if Republicans controlled state government, they could do the exact opposite. Nothing is secure at the state level unless you have a state constitutional amendment. This is trying to keep conservative cities and counties in Colorado from trying to regulate abortion in this possible post-Roe, or significantly reduced Roe, future that's increasingly likely.

If Roe were overturned, what would happen at the state level?

Regulation of abortion would be returned to states, and so you could have Alabama, Texas, North Dakota, Idaho, etc., ban abortion outright. Then you would be left with a range of states that regulate it to varying degrees or that affirmatively protect abortion. It wouldn't be made illegal nationally unless the federal government took some sort of action there, which is unlikely. A national ban wouldn't happen just because of a court case overturning Roe.

In September, Planned Parenthood of the Rocky Mountains said it was seeing more out-of-state patients in the wake of Texas’ restrictive abortion law. As more conservative states follow suit, do you expect that trend to continue?

Definitely. In this kind of future landscape that we can see developing right now, women who have the resources can travel out of state to get an abortion. This is something we’ve always seen. Even in the pre-Roe period, women who had resources have been able to access abortions.

Yes, we can expect to see more travel. But as you see that, you need to recognize that some women don't have those resources, can’t travel and don’t have access at all. Preserving abortion rights in Colorado doesn’t address all the needs for folks in Texas, Idaho, Wyoming, etc.

What is driving more conservative states to pass restrictive laws?

Actually, public opinion polling on abortion has been relatively steady for decades. [The Pew Research Center’s latest poll shows 59% say abortion should be legal in all or most cases, while 39% say it should be illegal in all or most cases.]

You need to look at other factors to understand what's pushing this. Conservative states have been trying to regulate abortion for decades. The old cycle was that conservative states would try to push the limits of Supreme Court precedent with new bills. Oftentimes, those would fail in the courts. If they didn’t fail, they would incrementally move something ahead. They would target a specific abortion procedure, or they would selectively regulate abortion clinics or providers, and in doing so they would chip away at abortion access.

Then you need to understand politics from 2016 forward. In June 2016, the Supreme Court decided Whole Women's Health v. Hellerstedt, which is out of Texas. That was a remarkable case because for the first time, the Supreme Court gave a robust reading of what an undue burden was – a standard previously established in Planned Parenthood v. Casey.

The court said Texas, through this law, had created an undue burden. That was particularly important because the court essentially struck down what was the most promising anti-abortion state legislative strategy up to that point in time.

With the expectation that Hillary Clinton was going to win the presidency, it looked as if anti-abortion activists were going to have serious problems moving ahead. But then Trump wins, and he gets multiple appointments to the Supreme Court. That made the pendulum swing in the opposite direction. It invigorated anti-abortion activists in a way we have not seen in decades. Anti-abortion activists got really excited about their future prospects because the Supreme Court was changing with the Trump administration.

States ramped up their regulatory efforts to respond to this reinvigorated anti-abortion movement. And in a conservative state, this is a popular thing to do.

The way Texas structured its restrictive abortion law was intentional. Several states are copying its model since the Supreme Court refused to hear the case, effectively upholding the law. What makes the law in Texas unique?

The reason conservative states have often failed in terms of passing restrictive abortion laws is because states aren't allowed to ban abortion or create an undue burden before fetal viability.

What they decided to try to do in this law was to take the state out of it and say the state is not regulating abortion, but essentially, we're deputizing individuals to go out and bring lawsuits against abortion providers or anybody who has helped anybody get an abortion and so forth.

It's the state handing over power to individuals to go out and bring lawsuits to try to severely damage and attack abortion providers.

There’s this financial incentive of $10,000. That was the minimum. You can bring lawsuits for more than $10,000. Other things are built into it too, like, say I sue you and I lose. Oftentimes, you could say I brought an unfounded suit against you, I lost, now I have to pay your legal fees. Texas explicitly said, “No, you don’t,” which means I have all the more incentive to sue because I stand to make money, and it’s not going to cost me other people’s legal fees if I lose.

But there's a double-edged sword to this. California pretty immediately said that if the court was going to let Texas effectively ban abortion in this way, then they were going to do the same thing around the Second Amendment.

This is showing Republicans and conservatives, "Hey, you think you've found a really clever means around the Supreme Court precedent here, but if you allow this, progressives can use it too to go after the policy issues that they are frustrated with.”

And that opens a very dangerous Pandora's box. You're basically saying law doesn't matter, in some ways, right? You’re saying what the court says doesn't matter in terms of the state because we can deputize individuals to do the things states haven't been allowed to do.