A law that would have been the first in the United States to ban a controversial practice known as “abortion pill reversal” cannot go into effect, a judge ruled late Saturday.
US District Court Judge Daniel D. Domenico granted a preliminary injunction in the case, ruling in favour of a Catholic health clinic that argued the law violated its First Amendment rights.
“The government generally may not regulate an activity if that regulation burdens religious exercise, provides for individual exemptions, fails to regulate comparable secular activities that pose similar risks, and otherwise targets religious activity,” Domenico wrote. “The law at issue here violates these First Amendment principles.”
Anti-abortion groups claim that “abortion pill reversal” can be used to stop a medication abortion, which is typically induced by taking doses of two drugs several hours apart. If an abortion patient takes the first drug and then changes her mind, anti-abortion activists say she can take the hormone progesterone to “reverse” the first drug and preserve the pregnancy.
However, the first randomised controlled clinical trial attempting to test the effectiveness of the ‘reversal’ protocol was suddenly halted in 2019 after three of its participants ended up in hospital bleeding to death. The American College of Obstetricians and Gynaecologists, in a statement entitled in part ‘Facts Matter’, said claims of abortion reversal ‘are not based on science and do not meet clinical standards’.
Regardless of the effectiveness of the protocol, less than 0.005% of people choose to continue their pregnancy after taking the first drug in a medication abortion, according to a 2023 study published in the American Journal of Public Health. If someone does decide not to take the second drug in a medication abortion, doctors are supposed to keep an eye on them; the pregnancy may continue because the patient didn’t take the second drug.
The Catholic clinic’s lawsuit claims that it has treated dozens of people who wanted to undergo abortion pill reversal.
“Abortion pill reversal is nothing more than the addition of progesterone,” the lawsuit argues. “And there are a variety of off-label uses for progesterone, which has been widely prescribed to women – including pregnant women – for more than 50 years.”
Before Roe v Wade was overturned in 2022, at least 14 states passed laws that effectively required providers to suggest to patients that an abortion could be reversed, according to a study in the American Journal of Public Health.
Katherine Riley, the policy director of the Colorado Organization for Latina Opportunity and Reproductive Rights, one of the organisations that backed the Colorado law, told the Guardian that the law was designed to stop the spread of misinformation, not to target specific religious practices.
Speaking ahead of the ruling, she said a decision against the law would blur the line between medicine and science.
“These people can pretty much get away with whatever they want as long as they claim they’re doing it in the name of their religion,” Riley said. “Which to me is crazy.”
In his ruling, Domenico said the Colorado law must meet a legal standard known as “strict scrutiny” in order to stand.
“The state must come forward with a compelling interest of the highest order to uphold the law,” he wrote. “It has not even attempted to do so.”
Facilities that offer abortion pill reversal are often known as crisis pregnancy centres, which are often faith-based and usually try to persuade women to continue their pregnancies.
Abortion rights advocates have spent years trying to find a way to regulate crisis pregnancy centres. In 2018, the US Supreme Court struck down a California law that would have required licensed centres to tell patients about publicly funded family planning services, including birth control and abortion, and required unlicensed centres to tell women they were unlicensed. The court, then dominated 5-4 by conservatives, ruled that these requirements violated the centres’ First Amendment rights.
More recently, California’s attorney general sued several crisis pregnancy centres this year, claiming they made fraudulent and misleading claims by saying that abortion pills can be reversed to stop a medication abortion.
Ken Paulson, director of the Free Speech Center at Middle Tennessee State University, said the California case was simpler than the Colorado law and could succeed. The Colorado law is more complicated, he said.
“The notion that there’s a religious right to market a pill that the state believes is potentially unsafe is a little surprising,” Paulson told the Guardian before Monday’s ruling. Opposition to abortion is not just a religious issue, nor is it linked to any one religion, Paulson said. “There are literally tens of millions, if not more, of Americans who oppose abortion, and they do not all go to the same church.”
While the Colorado injunction is not a final ruling in the case, it does freeze the law while the case plays out. That process could take years.
A spokesman for the Colorado Attorney General’s Office, which argued in court in favour of the law, said the office had no comment on pending litigation.