Federal Judge Blocks Colorado Law Barring Abortion Pill Reversal in Catholic Clinic Case

A federal judge blocked a Colorado law on Saturday that explicitly bars abortion pill reversal, a method often used by pro-life pregnancy clinics to attempt to reverse a medication abortion in its early phase.

“Colorado is trying to make outlaws of doctors and nurses providing life-saving and compassionate care to women they serve,” said Rebekah Ricketts, counsel with the plaintiffs’ representing law firm, The Becket Fund for Religious Liberty. “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 passed SB23-190 earlier this year, making it “unprofessional conduct” for healthcare professionals to offer women the hormone called progesterone when seeking to reverse the effects of the first abortion pill, called mifepristone. The founders of Bella Health and Wellness, Catholic mother and daughter nurse practitioners Dede Chism and Abby Sinnett, immediately filed a lawsuit challenging the law and alleging that it violates their First Amendment religious and speech rights.

In April, the state agreed to place the law on hold until three state boards weighed in on the safety of abortion pill reversal. During that time, “Bella successfully helped multiple women continue their pregnancies, including one who recently gave birth to a healthy baby,” the plaintiffs’ attorneys said. Even so, the state went ahead with banning abortion pill reversal.

Judge Daniel Domenico, appointed by former President Donald Trump, issued a preliminary injunction against the law and wrote that Bella Health and Wellness “are likely to succeed on their [abortion pill reversal] claims.”

“Under that more recent precedent, the State generally cannot regulate an activity if that regulation burdens religious exercise, provides for individualized exceptions, fails to regulate comparable secular activities that raise similar risks, and otherwise targets religious activity,” the order reads.

“The law at issue here runs afoul of these First Amendment principles. And because it does, the State must come forward with a compelling interest of the highest order to maintain the law. It has not even attempted to do so. Plaintiffs are therefore entitled to a narrow preliminary injunction,” the order continues. 

Bella Health’s attorneys stated in its complaint that “as a matter of conscience, Bella and its providers cannot refuse to help a woman who desires to continue her pregnancy simply because she took mifepristone.”

“Consistent with their core religious beliefs in human dignity, Bella and its providers are religiously obligated to offer abortion pill reversal so long as they have the means and ability to do so,” the complaint states. 

Judge Domenico concurred, writing in his order that “there is not question whether [the law] burdens Bella Health’s free exercise of religion. It does.”

“Bella Health considers it a religious obligation to provide treatment for pregnant mothers and to protect unborn life if the mother seeks to stop or reverse an abortion,” the order states. 

What Is Abortion Pill Reversal? 

A chemical abortion is typically completed through a two-drug regimen earlier in pregnancy. The first drug, mifepristone, blocks the action of the hormone progesterone, which the mother’s body produces to nourish the pregnancy. When progesterone is blocked, the lining of the mother’s uterus deteriorates, and blood and nourishment are cut off to the developing baby, who then dies inside the mother’s womb. The second drug, called misoprostol (also called Cytotec) then causes contractions and bleeding to expel the baby from the mother’s uterus. This kind of abortion accounts for more than half of all abortions in the United States. 

Proponents of abortion pill reversal say a woman may attempt to reverse her chemical abortion after taking mifepristone, but before taking misoprostol, with providers prescribing “progesterone in an attempt to overcome the progesterone-blocking effects of the mifepristone and maintain the pregnancy,” according to the complaint. 

“Some women change their mind about terminating their pregnancies after taking mifepristone but before taking misoprostol. Other women did not want to take mifepristone in the first place, but rather took it under duress or because they were tricked,” the complaint notes. 

Plaintiffs pointed out that progesterone is classified as a “Category B” drug for pregnant women, “in the same category as Tylenol, the most commonly used pain reliever during pregnancy.” Progesterone is used to treat a myriad of women’s reproductive health issues related to pregnancy, miscarriage, and menstruation, and is notably used “off-label” for all uses besides treatment of endometrial hyperplasia and secondary amenorrhea, according to the complaint. The complaint notes that off-label use of prescription drugs is a “widespread and accepted practice in health care” long recognized by the U.S. Food and Drug Administration (FDA).

However, the state, citing its experts and major medical industry bodies, argued that abortion pill reversal is unproven, ineffective, potentially unsafe, and relies on incomplete research.

“The parties appear to agree that progesterone is ‘generally considered a low-risk medication’ with ‘many off label uses that meet generally accepted standards of medical practice.’ There is scientific debate, however, on how effective progesterone treatment is for at least some of the aforementioned conditions,” Judge Domenico wrote.

“While limited, some evidence also suggests that progesterone may also aid in preventing termination of a pregnancy after ingestion of the first abortion pill—a point hotly contested by the parties,” he continued. “Much of this evidence is limited to animal studies and case studies in humans that are not as rigorous as placebo-controlled, double-blind studies, for instance. Nonetheless, some doctors believe it makes biological sense that progesterone might counteract mifepristone’s effects.”

Singling Out Religious Activity

Judge Domenico said Colorado had gone out of its way to curtail abortion pill reversal by claiming it was seeking to prevent patients from off-label uses of prescription drugs that lack evidence of efficacy and safety. But Domenico ultimately found that the state’s regulatory regime is “vastly underinclusive as to comparable secular activities” and that the state had provided “little, if any” evidence that it had regulated off-label use of hormones or any other drugs in the way it has with abortion pill reversal.

“At this stage, Bella Health has adequately shown that there are multiple comparable secular medical practices that [the 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.”

He added that the target of the bill is abortion pill reversal and that the Colorado state legislature “knew that the burden of this prohibition, in operation, would primarily fall on religious adherents.”

“Because [the law] is not neutral and generally applicable, it must satisfy strict scrutiny. Historically, strict scrutiny requires the State to further interests of the highest order by means narrowly tailored in pursuit of those interests. The State has not even attempted to argue that [the law] satisfies this exacting standard,” the order reads.

“The State’s interests in regulating the medical profession, generally, are too broadly formulated. Its more specific interests, in protecting the public from off-label uses of progesterone that lack evidence of efficacy and safety, are undermined by the disparate treatment of comparable secular activity, and the case-by-case possibility of individualized exceptions,” he added.

Colorado has 30 days to appeal the decision to the U.S. Court of Appeals for the Tenth Circuit.

The case is Bella Health and Wellness v. Weiser, No. 1:23-cv-939 in the U.S. District Court for the District of Colorado. 

Katherine Hamilton is a political reporter for Breitbart News. You can follow her on X @thekat_hamilton.