Colorado cannot stop a Catholic clinic from offering a hormone treatment to women who regret taking the first chemical abortion pill and wish to continue their pregnancies, a federal judge has ruled.
A chemical abortion consists of two different medications: mifepristone which blocks the natural production of progesterone, a hormone crucial to the unborn child’s survival; and then misoprostol, which causes the womb to contract and empty. The “abortion reversal” treatment involves giving women a very high dose of progesterone after they have taken the mifepristone, with the hope that it counteracts the abortion pill’s effect.
A law passed earlier this year, however, declares that such treatment amounts to “unprofessional conduct” under Colorado’s medical licensing laws, subjecting doctors and nurses who administer this treatment to penalties and possible loss of their license to practice.
The constitutionality of the law was challenged by Bella Health and Wellness, a Catholic medical center that provides maternal care from a pro-life perspective. The clinic asked the court to block the ban on the progesterone treatment, arguing that helping women maintain their pregnancies is a part of their religious mission protected by the Free Exercise Clause of the First Amendment.
“As a matter of conscience, Plaintiffs cannot refuse to administer progesterone to a woman who desires to continue her pregnancy simply because she took mifepristone,” Bella Health, represented by non-profit law group Becket Fund for Religious Liberty, argued in its request for preliminary injunction. “Plaintiffs are therefore religiously obligated to offer the abortion pill reversal that Colorado now outlaws.”
The clinic also emphasized that some women “do not want to take mifepristone in the first place,” but rather take it “under duress” or because they were “tricked or forced.”
“Bella has treated dozens of abortion pill reversal patients who successfully maintained their pregnancies,” it claimed.
The state of Colorado, on the other hand, argued that the law is meant to protect patients from “off-label uses” of prescription drugs that allegedly lack scientific evidence of efficacy and safety, although it’s not uncommon for physicians to prescribe off-label progesterone to treat other reproductive health issues, including threatened miscarriages and early pregnancy bleeding.
Mr. Domenico, a President Donald Trump-appointed judge, sided with the clinic, saying that it is likely to succeed on its free exercise claims.
“The [U.S.] Supreme Court has long held that laws may burden religious exercise only so long as they are ‘neutral and generally applicable,’” the judge wrote, adding that he found Colorado’s “abortion reversal” ban fails to meet neither of the two requirements.
In effect, according to Mr. Domenico, the state’s restriction singles out religiously motivated medical practitioners like Bella Health, since it doesn’t ban the use of progesterone in many other “secular” contexts that are not related to abortion.
“In addition, the state similarly does not regulate patients or doctors who fail to complete the full two-pill chemical abortion regimen, despite relying on evidence suggesting that doing so may raise safety risks,” he added.
“At this stage, Bella Health has adequately shown that there are multiple comparable secular medical practices that [the Colorado law] does not ban,” he wrote. “There is not typically a problem with singling out a drug or medical practice for strict regulation, even if comparable activity goes unregulated. But doing so in a way that burdens religious activity triggers strict scrutiny.”
Bella Health welcomed the decision, which it said would help protect many women who seek medical help to keep their unborn children.
“Some of these women have had abortion pills forced on them, and others change their minds,” Dede Chism and Abby Sinnett, Catholic mother-and-daughter cofounders of Bella, said in a statement following the ruling. “We are relieved and overjoyed to continue helping the many women who come to our clinic seeking help.”
“Colorado is trying to make outlaws of doctors and nurses providing life-saving and compassionate care to women they serve,” said Rebekah Ricketts, counsel at Becket. “This ruling ensures that pregnant women across the state will receive the care they deserve and won’t be forced to have abortions against their will.”
Colorado, which is the nation’s first and only state to make prescribing progesterone in this way medical misconduct, has 30 days to appeal the decision to the U.S. Court of Appeals for the Tenth Circuit headquartered in Denver.
