by Becky Olson
Colorado House Bill 22-1279 “Reproductive Health Equity Act” (hereafter referred to as “HB-1279”) passed the third reading by a vote of 40-24 along party lines on Monday, March 14th, with no amendments and was introduced in the state Senate for the next phase of the legislative process.
This bill addresses a long-standing, core issue in American politics and is fomenting much controversy and attention from both sides of the aisle. Indeed, the bill only moved to its third reading in the House after a record-setting, twenty-three hour plus continuous debate late last week that included lawmakers catching some winks in their cars in the parking lot and a verbal altercation between two lawmakers at one point, according to Colorado Newsline, in addition to a rally of pro-life activists on the Capitol steps.
The bill’s sponsors and co-sponsors, all Democrats, assert this legislation is “necessary for the immediate preservation of the
public peace, health, or safety” and have admittedly chosen, for expediency’s sake, to pursue the legislative route as opposed to the Constitutional Amendment route that would require a ballot measure be put forth to a vote of Colorado citizens.
The bill’s sponsors and pro-abortion activists state they intend to still pursue a ballot measure for the 2024 election, but this legislation provides a necessary stopgap in the interim to head off the ramifications of potential outcomes of a U.S. Supreme Court decision on the famous Roe v. Wade opinion of 1973. That original SCOTUS opinion is widely viewed to have established a woman’s right to procure abortion services, and abortion activists in Colorado are concerned women’s rights and access to these services will be restricted should SCOTUS overturn the long-standing opinion on that case later this year.
Specifically, HB-1279 seeks to restrict Colorado “public entities” (which also includes private contract prisons) from any action that would “deny, restrict, interfere with, or discriminate against an individual’s fundamental right…to continue a pregnancy and give birth or to have an abortion…”. The bill would also codify into Colorado law the declaration that, “a fertilized egg, embryo, or fetus does not have independent or derivative rights under the laws of this state.”
Aside from the underlying subject matter which is always guaranteed to draw fierce controversy, the bill’s language does appear to have a large degree of non-specificity and ambiguity that critics argue would conceivably give legal cover to exploitation of vulnerable women or outcomes that many view as the taking of a human life. For example, the bill does not identify a time limit on how far into a pregnancy a woman can be and still make the decision to terminate; nor is there a minimum age defined for pregnant girls or women to have the legal capacity to make this decision without parental notification or consent. The bill’s language also begs the question and could invite endless legal debate over the precise moment a “fetus” becomes a “baby”, and whether a fetus that survives an abortion attempt is entitled to life-saving procedures and medical care.
Ambiguity in statutes like this also creates an environment ripe for what is colloquially referred to as “legislating from the bench”, whereby legal gray areas are not clarified by lawmakers, but instead are ultimately hashed out in court cases which then establishes judicial precedent on a topic that other jurists defer to when presiding over future cases.
It’s worth noting abortion is already and has been legal in Colorado for decades. There is even a process called “Judicial Bypass” under which minor girls can obtain a court order which allows them to terminate a pregnancy without parental notification or consent. Even if Roe v. Wade were overturned by SCOTUS, that would simply mean this issue is returned to the individual States. As discussed, Colorado has long recognized a woman’s right to procure abortion services – a position which is supported not only by most of the state’s elected officials, but also by an increasing number of Coloradans due to shifting demographics, so the likelihood of abortion being outlawed as a whole in Colorado is effectively zero at this point. What the bill’s sponsors appear to be trying to address with this legislation is the possibility of the imposition of local restrictions on abortion services within certain parts of the state in the event SCOTUS overturns its prior Roe v. Wade decision later this year. This also begs the question of why Colorado’s lawmakers encourage local decision making on other important issues such as immigration and self-defense, but not on this crucial topic.
HB-1279 now heads to the Judiciary Committee in the state Senate, where it is expected to pass and then land on the desk of Governor Jared Polis who has expressed support for the legislation. For more information and to read the most recent version of the bill, click HERE