Nearly six months after putting the case on hold so a trio of regulators could evaluate the practice, a federal judge on Tuesday heard arguments over whether to block Colorado from enforcing an effective ban on “abortion reversal” treatment against a Catholic health clinic.
Bella Health and Wellness, a faith-based health care provider with locations in Englewood and Denver, claims that a recent state law violates its First Amendment right to religious exercise. Either its providers must refrain from acting on their Christian beliefs and stop facilitating treatment to reverse the effects of medication abortion, or they will continue to treat patients and risk professional discipline, Bella Health argued.
Lawyers for Bella Health pointed out that the law, Senate Bill 190, came amid a national battle over reproductive rights after the conservative majority on the U.S. Supreme Court overturned longstanding federal protections for abortion. They argued that the Democratic sponsors of SB 190 had vilified faith-based clinics, calling them ‘fake’ and ‘deceptive’, and that the law should receive the highest level of scrutiny from the courts.
U.S. District Court Judge Daniel D. Domenico noted that the anti-abortion reversal law may be neutral toward religion and broadly within the state’s regulatory authority. But there was also evidence that the sponsors intended to target faith-based providers in particular.
“I don’t necessarily think that a majority or even many of the supporters of this law thought, ‘We don’t like Catholics and let’s ban something that Catholics want to do’,” he said. “But they saw something that members of a religious group were doing … and they banned it.”
Medication abortion typically involves a pregnant woman taking the drug mifepristone, followed by a dose of misoprostol. Although a pregnancy can survive without the follow-up dose, the administration of progesterone can dramatically increase the chances of maintaining a pregnancy – according to abortion reversal advocates – even after a person has taken mifepristone.
Bella Health and the state disputed the accuracy of the science underlying the practice of abortion reversal. Bella Health said its staff had successfully provided progesterone to thousands of patients over the years, but Domenico questioned whether he needed to become a “scientific arbiter” to resolve the clinic’s First Amendment claims.
SB 190, which was passed as part of a package to strengthen reproductive rights in Colorado, contained several components that Bella Health found problematic. The preamble to the bill described the provision of abortion reversal services as a ‘deceptive trade practice’, with misleading claims about abortion and contraception subject to penalties under the Colorado Consumer Protection Act.
The legislature has also proactively labelled the provision of abortion reversal as ‘unprofessional conduct’. However, if the state’s boards of pharmacy, nursing and medicine all decide that abortion reversal is a generally accepted practice, the ban would fall by the wayside.
In April, Domenico originally refused to block SB 190 from taking effect, based on the state’s assurances that it would not take action against Bella Health until the three boards had completed their review. Recently, each board completed its review. The Board of Pharmacy and the Board of Nursing declined to classify the treatment as professional or unprofessional, opting instead for a case-by-case approach. The Medical Board opted to classify the use of progesterone in combination with mifepristone as unprofessional conduct.
The state announced it would not enforce SB 190 until 23 October, prompting Bella Health to return to Domenico and seek a temporary restraining order. The clinic’s lawyers argued that the state had chosen to ban the administration of progesterone in only one context, suggesting that any safety concerns were minimal or non-existent.
“Here, they’re allowing every other use of progesterone,” said attorney Mark L. Rienzi of the Becket Fund for Religious Liberty. He added that some pregnant patients may be tricked or coerced into taking mifepristone to induce an abortion, making abortion reversal treatment essential for those who want to keep their pregnancies.
“This is a matter of life and death for the women who knock on our door,” he said. “All they’re asking is, ‘Hey, if there’s something you know that might help, try it.'”
The state countered by calling abortion reversal “unscientific” and “dangerous”, with few pregnant patients changing their minds after taking mifepristone.
“What is the interest served by this law?” asked Domenico, a Donald Trump appointee.
“Protecting patients from a procedure that all the science says doesn’t work at best,” replied Assistant Attorney General Brian Urankar.
Domenico seemed torn about the merits of Bella Health’s case. On the one hand, he noted that the state would not automatically impose severe penalties on Bella Health if it continued to provide the treatment, nor was the provision of progesterone an inherently religious practice.
“Say it was the other way around. Say they passed a law banning medication abortion,” Domenico told the clinic’s lawyers. “A state in general could do that, right?”
On the other hand, Domenico noted that the legislature had taken the unusual step of declaring a particular medical practice unprofessional, and then asked three panels of experts to decide whether they disagreed.
“Before this case, the state of Colorado let you figure it out as you went along. Now you have a law that applies to this one use of this drug,” Domenico said. “The plaintiff’s argument is that this one use is mostly done by religious people, and the state knew that. And they banned it. And that’s a constitutional problem.
Mifepristone itself has been the subject of litigation elsewhere, and a Trump-appointed judge in Texas was criticised, including by scientists, for the way he applied science to suspend mifepristone’s long-standing federal drug approval this year. Domenico acknowledged the unsettled science surrounding progesterone administration and suggested he would defer to the judgment of the Colorado medical board, which is a defendant in the lawsuit.
Domenico will issue a ruling before the state’s non-enforcement period expires on Tuesday.