Colorado is now among strongest states for abortion protections | 2023 LEGISLATIVE SESSION

Colorado was the first state in the nation to decriminalize abortion in certain cases in 1967. This year, the state reclaimed its status as a leader for abortion protections. 

During the 2023 legislative session, lawmakers passed a package of bills designed to protect and increase access to abortion in the state, just over a year after Colorado enshrined abortion as a fundamental right. The three bills were signed into law in April. 

Senate Bill 188 protects patients and providers of abortion and gender-affirming services in Colorado from penalties from other states. Senate Bill 189 expands health insurance coverage for abortion, sterilization and treatment of sexually transmitted diseases. Senate Bill 190 prohibits what sponsors deem to be deceptive advertising and the use of abortion "reversal" pills in crisis pregnancy centers. 

"Colorado has really embraced this opportunity to be a national leader," said Kelly Baden, vice president of public policy for the Guttmacher Institute, a reproductive health research and policy organization. "Colorado is part of the pack of states that see that abortion legality is critical, but now also has gone beyond that to recognize that legality alone is not enough."

Nationally, 25 states and Washington D.C. have some kind of abortion protections via state laws, state constitutions, executive orders or state Supreme Court precedents, according to the Guttmacher Institute.

But with this year's bill package, Colorado joined a smaller group of states taking stronger steps to preserve abortion rights after the Supreme Court overturned federal abortion protections in the Dobbs v. Jackson Women's Health Organization ruling in June. 

Colorado was one of the first states to direct agencies to withhold medical records from states seeking to impose criminal or civil penalties on those who receive or provide abortions via Gov. Jared Polis' executive order in July. SB 188 enshrined the order into law, prohibiting Colorado from recognizing criminal prosecutions or civil lawsuits regarding legally protected abortion care.

The bill made Colorado one of only four states with such protections for abortion via both executive order and state law, according to the Guttmacher Institute. 

Overall, 20 states and Washington D.C. have some form of shield protections for abortion. However, only 10 states and Washington D.C. extend those protections to gender-affirming care for transgender individuals, as SB 188 did for Colorado. 

Most notably, though, SB 190 made Colorado the first state in the nation to ban the use of abortion "reversal" pills, and joined only a handful of blue states in regulating crisis pregnancy centers.  

“That is where the leadership of Colorado stands out," Baden said. “The law really does put Colorado among a small group of states that have actually enacted state laws to try to address (crisis pregnancy centers). ... It has the potential to chart additional ideas and motivations for other states to do the same.” 

SB 190 prohibits crisis pregnancy centers from advertising abortions, emergency contraceptives or referrals they don’t actually provide, classifying it as deceptive advertising. Few statewide laws have passed to regulate crisis pregnancy centers, which critics say pretend to offer abortion care but don’t, using "disinformation, intimidation, shame and delay tactics" to prevent people from accessing abortion care. 

Connecticut in 2021 and Illinois last week passed similar laws to SB 190, cracking down on deceptive practices in the centers. The Massachusetts legislature voted to create a $1 million public awareness campaign targeting the centers last year, but the effort was vetoed by the governor. California tried to require the centers to provide information about abortion services, but the U.S. Supreme Court ruled against the law in 2018.

SB 190 also prohibits the controversial practice of using "abortion reversal pills" to try to stop a medication-based abortion. The bill outlawed abortion reversal until Oct. 1, when the state’s medical, pharmacy and nursing boards must decide whether it is an accepted practice, or if the ban should remain in place. But after a lawsuit challenged the law, the state agreed not to enforce the ban until after the boards make their decision.

Opponents to Colorado's new abortion protection bills called them "radical" and "extreme," declaring the state's laws "the most permissive in the country." 

“They deny a new mother the choice to consider alternative options other than to end her pregnancy," said House Minority Leader Mike Lynch, R-Wellington. "Those who call for abortion-on-demand have ensured with the signing of these three ideological bills that Colorado will continue to be an abortion destination.”

Some abortion proponents said Colorado's laws still do not go far enough, as there are some remaining restrictions in the state. 

For a minor to receive an abortion, the Colorado Parental Notification Act requires the minor's parents be notified at least 48 hours prior. The law only requires that the parent be notified but not that they consent, and the decision to receive an abortion still rests with the minor. 

In addition, Colorado’s constitution forbids public funds, such as Medicaid, to be used to pay for abortions, with the only exception being to save the pregnant woman's life. This prohibition was narrowly approved by Colorado voters in 1984. 

“Poor women in Colorado are, legally, basically living in Texas,” said professor Jennifer Hendricks of the University of Colorado Law School, who specializes in family and pregnancy law. “There’s been a lot of talk about Colorado as a haven and how we’re protecting this right and it’s important for women in the region, but the barriers that poor women face have not gotten as much attention.”

One of Colorado's new laws, SB 189, requires health insurance carriers that serve large employers to cover abortion without deductibles, copays or coinsurance. It also applies to the small group and individual market depending on how it would affect premiums, but it would not touch Medicaid or public employees, as that would require changing the state constitution. 

Colorado aligns with most of the country in these abortion restrictions. 

Public funds are restricted from being used for abortion in 33 states and Washington D.C., according to the Guttmacher Institute. And the Hyde Amendment bans the use of federal funds to pay for abortion, except in cases of rape, incest or to save the pregnant woman's life.

For a minor to get an abortion, 36 states require parental involvement, 21 of which require parental consent, according to the Guttmacher Institute. 

Some blue states, notably New York and California, don't have these abortion restrictions that persist in Colorado. These states have also gone further than Colorado in some ways regarding abortion access, such as by creating the New York Abortion Access Fund to help women pay for abortion and the California Future of Abortion Council to determine what else the state can do to protect abortion and expand access. 

“There’s no one state that is a perfect haven for abortion rights, there’s also not one state that is the worst,” Baden said. “It really depends on your identity and your own situation about which barriers to abortion care you can navigate and which you can’t." 

But Colorado is still considered to have some of the strongest abortion protections in the nation, Hendricks said, pointing to the fact that Colorado has no cut offs for at what stages of pregnancy abortion is legal. 

Colorado is one of seven states with no ban or limit on abortion based on how far along a pregnancy is. In this category, Colorado surpasses even New York and California, which both only allow abortion until "viability," when a fetus is able to survive outside the uterus, usually at around 24 to 26 weeks of pregnancy.

Colorado's status as a leader in abortion access is evident in the patients traveling from out-of-state for care. Last year, the number of abortions performed in Colorado reached 13,771 — a 15-year record and a 20% rise from 2021, KDVR reported. The record is mostly due to patients from Texas coming to Colorado for abortions. Texans accounted for 2,345 abortions performed in Colorado in 2022, compared to only 400 in 2021.

So long as Colorado voters continue to support expanding abortion access, proponents said the state will likely keep moving towards being the top state for abortion protections by addressing the few remaining barriers in place. 

Hendricks said a measure asking voters to get rid of Colorado's ban on using public funds to pay for abortions could be on the ballot as soon as next year.

“Colorado is a good place to live if you believe in reproductive rights," Hendricks said. "We just need to keep plugging away.”