The Pueblo City Council this week approved on first reading a proposed ordinance that could ban abortion within city limits, with some councilmembers and Colorado law experts questioning its legality.

The ordinance seems to be the first proposed municipal anti-abortion law brought forth in Colorado, drawing residents and activists on both sides of the abortion debate who filled council chambers to capacity on Monday.

The council split the vote 4-3 to leave the item on the agenda and pass it on first reading through the consent calendar.

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Many councilmembers said they wanted to hear more information from city staff and other experts, and allow residents to comment on the item, on second reading.

City Council usually votes twice on proposed ordinances: once during the first reading, when the ordinance is grouped with other routine items on the consent agenda and passed with a single vote. The council votes individually a second time on each of the ordinances at the following regular meeting after a report from city staff.

The drafted rule says it would require abortion providers in Pueblo to comply with federal law, citing an 1873 Comstock law prohibiting the publication, distribution or possession of information about or medications or other tools for “unlawful” contraception or abortions.

Parts of the law banning contraception have since been overturned but other portions regarding abortion are seemingly still on record.

Proposed ordinance requiring abortion providers in Pueblo to comply with federal law

If it passed, the Pueblo ordinance would authorize the public, not the government, to enforce the law by suing abortion providers.

“You guys have the ability to protect your city by a simple ordinance requiring simple compliance with federal law,” Mark Lee Dickson, a pastor and anti-abortion advocate, told the council.

Dickson has helped pass municipal abortion bans in more than 60 cities, he said, paving the way for the 2021 Texas “heartbeat bill” that outlawed most abortions after six weeks.

He said he helped draft the proposed Pueblo ordinance in response to an abortion clinic planned there.

There are currently no abortion clinics in Pueblo, and the nearest one is about 45 miles north in Colorado Springs.

Clinics for Abortion and Reproductive Excellence has purchased a building in Pueblo’s historic Bessemer neighborhood but does not have an opening date, The Pueblo Chieftain reported. The organization also has locations in Nebraska and Maryland.

Sara Neel, senior staff attorney with the American Civil Liberties Union’s Colorado branch, said the drafted rule “clearly violates” Colorado’s Reproductive Health Equity Act, passed by the state Legislature earlier this year to codify a person’s “fundamental right” to choose to continue or terminate a pregnancy.

The state passed the legislation ahead of the U.S. Supreme Court’s overturning of Roe v. Wade in late June, dismantling the 50-year precedent that constitutionally protected the right to an abortion.

If Pueblo passed the ordinance it would be “a clear contradiction to that and is going against the will of the people in Colorado,” Neel said.

Dickson said because federal law overrides state law, the proposed regulation should be legal.

Neel said she didn’t believe the Comstock laws would apply in this case, saying courts have historically applied them to “unlawful items.”

“Since abortion is legal and the (Food and Drug Administration) has approved the distribution of medications used for abortions as legal, I don’t believe the Comstock laws would be applied in the way (proponents of the ordinance are) alleging that they do.

“It’s also a bit of a stretch to say city law wouldn’t be superseded by recent state law, but that state law should be superseded by federal law,” she said.

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Councilwoman Regina Maestri said she brought the document before the council on behalf of residents who are concerned about the planned abortion clinic in town.

“In order to really fight this, I did have to bring the top person in the country, because that came from a point of view from my constituents’ side that is pro-life,” she said.

Maestri said she is pro-life but is not an activist. “But I also am on what is right, doing the right thing,” she said.

Other councilmembers questioned the ordinance’s legality.

“I think this ordinance is really tricky and I don’t know if I like exactly the way this one is written,” Council President Heather Graham said. “But I am willing to listen and hear people come and talk, because I don’t know that my mind is made up completely.”

Councilwoman Sarah Martinez said the matter was a state issue, not a municipal one. Colorado voters have already struck down three statewide anti-abortion ballot measures, most recently in 2020, with Pueblo voters also rejecting the measures, she said.

“The majority of Pueblo has repeatedly told us where they stand on this issue,” Martinez said. “They want abortion access.”

If passed, the Pueblo ordinance could possibly face legal challenges from the state.

“Attorney General Phil Weiser is committed to defending the Reproductive Health Equity Act and challenging any local ordinance that violates the law,” spokesman Lawrence Pacheco said by email this week. “The Attorney General’s Office is monitoring developments regarding the proposed ordinance in Pueblo and has no further comment while it is under consideration by the Pueblo City Council.”

The Gazette’s attempts to reach the Pueblo City Attorney’s Office for comment were unsuccessful.

Background documents state the city’s legal staff does not recommend City Council approve the ordinance, which is scheduled for second reading at the Dec. 12 regular council meeting.

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