A state panel has blocked on procedural grounds a proposed ballot initiative that would generally ban abortions contrary to Supreme Court precedent, label fetuses as children, and include an enforcement mechanism similar to the one used in a controversial Texas anti-abortion law.

Initiative #51, tentatively captioned “Prohibit Intentional Killing of a Living Child,” would make it unlawful for any person to “murder a child of any age or developmental stage, ability or disability, including any time prior to, during, or after birth.”

Murder would encompass abortions, as the proposal would define a child as a “living human,” even prior to birth. It appears that, under the proposal, pregnant people would violate the measure by having an abortion, in addition to the medical professionals who perform the procedure. The measure also does not mention fetal viability – generally around 24 weeks of gestation – prior to which the Supreme Court has said states may not impose undue burdens on those seeking abortions.

Initiative #51 would make exceptions for abortions to save the health of the child or mother, and also for stillborn children.

In addition to creating a criminal penalty for abortions that mirror those for killing an at-risk adult, Initiative #51 would allow any person to bring a civil lawsuit against someone who “aids and abets killing a child,” including prior to birth. That provision resembles the heart of Senate Bill 8, a Texas law that went into effect in 2021 and entitles people who bring such lawsuits against abortion providers to up to $10,000 if they prevail in court.

On Wednesday, the Title Board, which is the three-member body that sets ballot measure titles for Colorado voters, found it could not consider a title for Initiative #51 because the proponents had made material changes to their proposal following a review by nonpartisan legislative staff.

After designated representatives Angela Eicher and Rebecca Greenwood took Initiative #51 through its review, Legislative Council Staff and the Office of Legislative Legal Services issued a memo in December questioning the effect of the measure, were voters to approve it.

“The United States Supreme Court has recognized a woman’s right to an abortion. Do you anticipate that the proposed initiative would conflict with legal precedent?” the memo asked.

Julie Pelegrin, the Title Board member representing the Office of Legislative Legal Services, said it did not appear the proponents’ changes addressed the concern over constitutionality. She also questioned a section of Initiative #51 that seeks to repeal language in the state constitution related to fetuses – even though the word “fetus” does not appear in the constitution.

Pelegrin suggested the language applied to some version of state statute, and that proponents were confused on the “difference between statute and constitution.”

Colorado voters have repeatedly rebuffed ballot initiatives seeking to restrict abortions, most recently in 2020, when a measure that would have generally banned abortions after 22 weeks received only 41% of the vote.

In December, the Supreme Court allowed Texas’ abortion law, which some critics described as a bounty-hunting scheme, to remain in effect by a vote of 5-4. The justices also allowed a more limited challenge to continue against SB 8 in the lower courts. The conservative-majority court is also weighing whether a Mississippi law banning abortions after 15 weeks is permissible, a decision that could potentially narrow or overrule the landmark Roe v. Wade case.

Democratic lawmakers in Colorado, responding to the anticipated Supreme Court decision, have announced plans to introduce a measure in the upcoming legislative session to protect access to abortion and contraception in the state.

If the proponents of Initiative #51 bring their proposal before the Title Board again, the board will consider whether the initiative contains a single subject, as the state constitution requires. If so, the board will set a ballot title that is brief, yet encompasses all central features of the measure. The proponents would then be able to collect signatures for placement on the statewide ballot.

Although nonpartisan legislative analysts did not calculate any specific costs to taxpayers if Initiative #51 became law, they cautioned about general adverse effects from virtually eliminating abortion access and holding those involved in abortions criminally and civilly responsible.

“Local law enforcement may have increased workload to investigate and prosecute more cases. Persons charged with criminal offenses under the initiative may be held in a county jail while awaiting trial, which would increase costs for counties,” the analysis reads. “To the extent that the measure results in more children being born in the state, child-related spending will increase, potentially shifting spending from other areas of the economy.”