Supreme Court Abortion

A woman holding a sign saying "stop abortion now," protests outside of the U.S. Supreme Court, Thursday, May 5, 2022, in Washington. A draft opinion suggests the U.S. Supreme Court could be poised to overturn the landmark 1973 Roe v. Wade case that legalized abortion nationwide, according to a Politico report released Monday.

Editor's note: This is a breaking story and will be updated. 

The U.S. Supreme Court on Friday overruled its own longstanding precedent guaranteeing access to abortion, now leaving it to the states to decide the parameters of their reproductive rights statutes.

"The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives," the court's majority concluded.

In discarding Roe, the court said it reviewed the standard in cases used used to determine whether the Fourteenth Amendment’s reference to “liberty” protects a particular right, and whether the right to get an abortion is "rooted in the nation’s history and tradition and whether it is an essential component of 'ordered liberty.'"

”The Court finds that the right to abortion is not deeply rooted in the Nation’s history and tradition," the majority said. "Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion." 

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The justices also considered whether an abortion is part of a "broader entrenched right" supported by other precedents, and they answered no.

"Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s 'concept of existence' prove too much," the court said. "Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like."

The court also said what distinguishes the abortion right from the rights recognized in cases that Roe and Casey rely is something both decisions acknowledged – abortion is different because "it destroys what Roe termed 'potential life' and what the law challenged in this case calls an 'unborn human being.'"

"None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion," the court said.

In Colorado, the ruling in Dobbs v. Jackson Women's Health Organization means the state’s recently enacted protections for abortion rights will continue the status quo.

The Supreme Court majority's abandonment of the landmark Roe v. Wade precedent renders Colorado "an island in the middle of an abortion desert," as one Planned Parenthood official put it, with most of surrounding states having enacted or considering to pass abortion restrictions.

Although state courts are free to interpret abortion restrictions in light of their own constitutions, punitive abortion laws may be the subject of further federal litigation. Colorado, which borders conservative states like Wyoming and Oklahoma, would also be bound by any rulings from the U.S. Court of Appeals from the 10th Circuit on the subject.

Colorado's law, the Reproductive Health Equity Act, recognizes a fundamental right to continue a pregnancy and give birth, or to have an abortion. Fertilized eggs, embryos and fetuses do not have independent rights under the law, and it prohibits state and local public entities from denying or restricting a person's right to use or refuse contraception, or to either continue a pregnancy or have an abortion.

Abortion-rights advocates pushed the measure before a draft U.S. Supreme Court opinion showing that five Republican-appointed justices were poised to overturn Roe was leaked to POLITICO, arguing it would serve as a bulwark against any decision by the conservative court.

Anti-abortion activists said they plan to sue over the new law, arguing it is overly broad and raises “serious questions” about the conscience rights of doctors, nurses and first responders.

Critics also raised several points against the measure, arguing it is so broad it could block protests against abortion clinics or interfere with local government zoning laws. They warned that its passage could risk a situation in Colorado similar to what happened in Pennsylvania in 2010, when then-Dr. Kermit Gosnell was convicted of running a for-profit abortion mill that resulted in the death of a patient and three illegal late-term abortions. Gosnell, who was also convicted of drug dealing, is serving a life sentence.

In signing the measure in April, Gov. Jared Polis said Colorado has been and will continue to be an abortion rights state, adding that Colorado residents can choose when to have children or get an abortion without fear of legal consequences, no matter the Supreme Court's decision.

He also pointed to states such as Texas, Kentucky and Arizona, accusing them of "enormous government overreach" with their own abortion restrictions.

"We don't want to see what happened in Texas happen in Colorado," House Majority Leader Daneya Esgar, D-Pueblo, one of the bill’s sponsors, also said. The Supreme Court recently allowed a Texas law allowing for private enforcement of anti-abortion restrictions to take effect.

Warren Hern, who runs the Boulder Abortion Clinic, had told Colorado Politics the legislation is the most important measure for women in Colorado since 1967, when another abortion-rights bill passed in the General Assembly.

"It's a strong signal to the entire country that we value women, freedom and democracy, and that this is a critical part of women's health care and we are going to protect it," Hern said.

There has been backlash to the Reproductive Health Equity Act from some corners of the faith community. Enactment of RHEA prompted Catholic leaders to ask Catholic legislators who voted for the legislation to not partake of the Eucharist, arguing to do so is to commit a sacrilege and live in contradiction.

The Catholic leaders said the church won't monitor whether the 10 Catholic members of the General Assembly who voted for RHEA abide by that request. Instead, the Colorado Catholic Conference, which wrote the open letter, said that burden rests on the legislators — whom they described as having committed a "gravely sinful action" — to follow their conscience.

"Voting for RHEA was participating in a gravely sinful action because it facilitates the killing of innocent unborn babies, and those Catholic politicians who have done so have very likely placed themselves outside of the communion of the Church," Colorado Catholic Bishops said, criticizing legislators, particularly Catholic members, who voted in favor of the bill as it was moving through the General Assembly in March.

Democratic strategists and abortion-rights supporters anticipated that the shockwaves of the Dobbs decision could echo through the November election by turning a referendum on President Joe Biden and the Democrats' control of state government into a choice between the two parties' positions on abortion.

Colorado voters could also be faced with a statewide ballot measure to criminalize abortion, and a wide enthusiasm gap that currently favors Republicans could close, reducing the GOP's advantage among an unhappy electorate.

"What they intend to do is take away a constitutional right that's been in existence for almost 50 years," Laura Chapin, a spokesperson for Cobalt, the state's leading abortion-rights organization, told Colorado Politics several weeks ago. "That's a whole different ballgame."

Republicans and their anti-abortion allies, however, counter that the prospect of sending decisions on abortion back to the states will likely energize abortion opponents, while also insisting that the top issues that have been driving voters — like inflation — will sway the electorate more than a court ruling that leaves Colorado substantially unaffected.

While candidates and abortion-rights advocates have long warned that the rights guaranteed by Roe are in danger, Chapin said that a decision and its immediate effects — including triggering laws to outlaw abortion in neighboring states — will activate voters in ways the issue hasn't in previous years.

"It is not a hypothetical," she said. "When you have an actual case overturning Roe that is concrete, voters understand that in a different way. Everybody keeps saying, 'My daughters are going to have fewer rights than I did,' and that's a very real thing."

Added Chapin: "Every bit of polling I've seen shows that abortion and reproductive rights is one of the few things that increases enthusiasm among the Democratic base and makes unaffiliateds more likely to vote Democratic."

Republican strategist Dick Wadhams, a former chairman of the Colorado GOP, told Colorado Politics he thinks state Democrats are misreading the potential effects of a decision that has been anticipated since at least last fall, when the Supreme Court heard arguments in cases involving Texas and Mississippi laws that would restrict access to abortion.

"I think the Democrats are overestimating the impact the Roe v. Wade decision is going to have," Wadhams said. "This Supreme Court decision doesn't give me a lot of heartburn. It's not going to obscure the issues that people are confronting on a daily basis."

Wadhams said it's the latest example of the party in power "being masters of whistling past the graveyard," as voters grow more unhappy with the way things are being run in Colorado.

"I watch these Democrats with dour faces condemn a Roe v Wade repeal and talk about how our nation is in peril, but behind the scenes they're doing cartwheels. They think this is the silver bullet that's going to save them in this election," he said.

Currently, Initiative #56, captioned "Unlawful Murder of a Child," is in the signature-gathering phase for possible placement on Colorado's statewide ballot. It would effectively outlaw abortion by popular vote, although the state's electorate has a history of rejecting restrictions on reproductive rights.

Craig Hughes, a veteran Democratic strategist, said the possible decision's effects will be amplified if supporters of Proposition 56 succeed in gathering enough signatures to put the measure on the fall ballot.

"This isn’t theoretical anymore," Hughes said. "You would literally be in a situation if that ballot measure would pass, abortion would become illegal immediately. It would be a seismic game-changer if that were to pass."

The ballot initiative, which lacks backing from Colorado's leading anti-abortion organizations, would make it "'unlawful for any person to murder a child' at any time prior to, during, or after birth," according to the Colorado Life Initiative Committee, a new group formed to promote the ballot initiative.

“There are no exceptions,” Angela Eicher, one of the measure's sponsors, said in a statement. "It's simple. We protect all children equally from murder. Thereby, we also protect parents and society from the trauma and ripple effects of killing a child."

Jeff Hunt, director of the Centennial Institute at Colorado Christian University and one of the most prominent evangelical voices on the state's political scene, told Colorado Politics he is doubtful the measure will even make the ballot.

"The pro-life community is split," he said, adding that neither the Catholic Archdiocese of Denver nor Colorado Christian University has decided to support the measure.

He said the initiative "as it is currently written would put everybody involved in prison for murder, including the woman."

Eicher told Colorado Politics that isn't what its sponsors want to happen, though she acknowledged that some potential allies have stayed on the sideline due to that interpretation of the initiative's language.

"Our actual intent is it would criminalize the people who are murdering children — abortionists or the industry of abortion," she said. "They would be criminalized, not the mother."

Eicher acknowledged that the measure's sponsors are facing an uphill battle, as volunteers attempt to gather more than 120,000 signatures required from registered Colorado voters by Aug. 8, but she said they're taking the same approach that's gotten the proposal to this point.

"We’re just trusting in God," she said.

Reporter Ernest Luning contributed in this article. 

Decision makes Colorado an “island in the middle of an abortion desert”

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