Colorado Governor Signs House Bill 22-1279 Which Codifies a "Right" to Abortion That Is More Extreme Than Roe v. Wade

We’ve been informing you that innocent human life is increasingly under attack in pro-abortion states. Colorado is one such state. On April 4, 2022, Governor Polis signed into law a bill that makes abortion a super-“fundamental right” in Colorado. Prior to Governor Polis signing the bill, the ACLJ sent a letter to the Governor opposing the radical pro-abortion bill and requesting his veto. We also detailed how the bill could severely impact the constitutional rights and freedoms of Colorado citizens. Despite vehement opposition to the bill on the part of the ACLJ, pro-life legislators, and other pro-life organizations, it is unsurprising that Governor Polis ignored the opposition and signed the bill.

As the authors of the bill point out, “Colorado was the first state to decriminalize abortion care in an overwhelmingly bipartisan effort in 1967, well before the Supreme Court affirmed the right to abortion care nationwide in Roe v. Wade.” And, as we pointed out in our letter, abortion has been largely unrestricted in Colorado. But for pro-abortion advocates, mostly unrestricted access to abortion wasn’t enough. Not only has Roe now been codified in Colorado – it has been expanded by allowing unfettered access to abortion through all nine months of pregnancy and for any reason whatsoever. Furthermore, abortion has been declared a “fundamental right” that cannot be restricted in any way by any public entity in Colorado.

As we pointed out in our letter:

House Bill 22-1279 defines the “[f]undamental reproductive health-care rights” of Coloradans. 25-6-403. The first of these “fundamental rights” is that of an individual “to make decisions about the individual’s reproductive health care, including the fundamental right to use or refuse contraception.” 25-6-403(1). The second such right is that of a pregnant “individual” to “continue a pregnancy and give birth or to have an abortion and to make decisions about how to exercise that right.” 25-6-403(2). The third provision concerning “fundamental rights” is that preborn children have none: “A fertilized egg, embryo, or fetus does not have independent or derivative rights” under Colorado law. 25-6-403(3) (emphasis added). As has been noted, however, by Colorado’s judicial branch:

"Fundamental rights are those implicit in the concept of ordered liberty such that “neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 721, 117 S. Ct. 2258, 2268, 138 L. Ed. 2d 772, 117 S. Ct. 2302 (1997) (quoting Palko v. Connecticut, 302 U.S. 319, 325, 326, 58 S. Ct. 149, 152, 82 L. Ed. 288 (1937)). They are rights deeply rooted in this nation’s history and tradition . . . . Chavez v. Martinez, 538 U.S. 760, 775, 123 S. Ct. 1994, 2005, 155 L. Ed. 2d 984 (2003); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33-34, 93 S. Ct. 1278, 1296-97, 36 L. Ed. 2d 16 (1973)."

Abortion – and unlimited access to abortion – cannot and should not have a place among rights that are “implicit in the concept of ordered liberty.” Neither would liberty and justice be extinguished if this “right” was sacrificed. In fact, it is the lives of an entire class of human beings that are being sacrificed and extinguished, without justice, for the convenience of other human beings. Moreover, one would be hard-pressed to show how the unlimited “right” to an abortion is “deeply rooted in this nation’s history and tradition.” It is the opposite that is true, as our nation has always valued life. Yet, this bill elevates abortion above other fundamental rights. It does so by attempting to circumvent any standard of review.

We further pointed out that the bill states:

“nothing in this part 4 may be construed to authorize a public entity to burden an individual’s fundamental rights relating to reproductive health care.” 25-6-405(2) (emphasis added). Unlike fundamental rights (e.g., First Amendment rights) that are guaranteed by the United States Constitution, this “right” would supersede every state policy, no matter how compelling the state’s interest is. Even freedom of speech is subject to time, place, and manner restrictions, and can be restricted when a compelling government interest is implicated, but unfettered access to abortion in Colorado would become a super-“fundamental right.”

Beyond attempting to provide a new (that is, no) standard of review for any current or future abortion regulations, this bill declares that, at any point before birth, a child has no rights—“independent or derivative,” and that the state may not interfere with ending the life of such children. The bill would also enshrine into a law a “right” to exercise the most invidious forms of discrimination: unborn children may be freely and openly targeted for killing solely because of their sex, race, or disability.

Moreover, the “purposefully broad language is especially concerning with regard to healthcare providers and workers who are religiously or morally opposed to abortion and who serve in public hospitals. Unlike abortion, the freedom of conscience is among the most fundamental of unalienable rights, and should not be discarded in favor of an abortion-on-demand regime.”

Now that this bill has been signed into law, there will undoubtedly be instances where the true God-given fundamental rights – as guaranteed and protected by the U.S. Constitution – of those who are morally opposed to abortion will be in direct conflict with Colorado’s new radical abortion law.

We know from polling, that at least one-third of Coloradans are opposed to abortion on demand and want restrictions. In fact, a majority of Americans oppose abortion on demand, and more Americans now even support a 15-week abortion ban than oppose it. We also know that the fight against these kinds of radical abortion laws needs to continue. We may lose a few battles, but we cannot afford to lose the war. There are other ways to fight against this law – and we need your help to do it.

If you live in Colorado, and you – especially healthcare workers – face pressure to perform, participate in, or refer for abortions, let us know at ACLJ.org/HELP.

We all need to work together, even in pro-abortion states like Colorado, to fight for life. That’s why we have been fighting back against these radical pro-abortion bills in states like Maryland, California, and Colorado. And we’re currently in the process of reviewing bills in other states that target preborn babies.

We will keep you updated on similar attempts to make Roe permanent as we fight back in states all across the nation for the lives of the most vulnerable among us.