Supreme Court Nomination Adds Scrutiny to Abortion Ballot Issues

President Donald Trump’s nomination of Amy Coney Barrett to replace the late Ruth Bader Ginsburg on the U.S. Supreme Court has raised the stakes for a proposed partial abortion ban in Colorado and a proposed constitutional amendment in Louisiana to restrict abortion rights.

The two measures on Nov. 3 ballots come at a time when Barrett, if confirmed by the U.S. Senate, could be involved in decisions about women’s reproductive health that could last for decades. Barrett personally opposes abortion, although she pledged to set aside her views in her work on the court.

The Colorado measure (Proposition 115) would ban abortions after 22 weeks gestation with no exceptions for rape, incest, non-life-threatening health risks, or a diagnosis determining that the fetus wouldn’t survive outside the womb. The only exception would be for abortions that are “immediately required to save the life of the pregnant woman.”

The measure also would impose a criminal penalty on anyone who performs an abortion, and require the state to suspend for three years the medical license of any physician found to be in violation.

The Louisiana measure would enshrine in the state Constitution restrictions on abortion and abortion funding. No exceptions would be made for cases of rape or incest, according to language in the measure (Amendment No. 1) approved by two-thirds of both legislative chambers in 2019.

Photographer: Tripp Baltz/Bloomberg

The likelihood Barrett will be confirmed “raises the stakes exponentially” for Proposition 115, said Katherine Ragsdale, president and CEO of the National Abortion Federation in Washington, D.C.

“We have every reason to suspect that if she’s confirmed, it’s only a matter of time until the Supreme Court stops enforcing precedent and leaves a woman’s health care to the mercy of individual states,” she said.

The initiative conflicts with Roe v. Wade, Planned Parenthood v. Casey, and other rulings upholding the constitutional right to an abortion, and could become a vehicle for the court to overturn abortion precedent, Ragsdale said.

Supporters say it would protect unborn children after they become viable outside the womb.

Colorado is one of seven states without a gestational limit on abortion; 43 states have laws limiting abortion after a certain point in a pregnancy.

Straight to Court

“Doesn’t the government have a compelling interest in protecting unborn children once they’re capable of feeling pain?” asked Ingrid Duran, state legislative director for the National Right to Life Committee, the nation’s largest pro-life organization. “No court has asked or balanced that question.”

If the initiative prevails, “we’d be happy to go to court to defend it,” Duran said.

And “I will be in court the next day,” said Boulder, Colo. physisian Warren Hern, whose clinic is one of a handful in the U.S. that perform abortions in the second and third trimesters.

“This is vicious legislation which completely ignores the critical issues women face,” he said. “It’s an attack on women’s health care and it interferes with the practice of medicine.”

Hern said he has developed techniques that “are almost always for important medical reasons, for women who are seeking to terminate because of catastrophic fetal abnormalities and immediate threats to their lives.” Many such situations are discovered well after 22 weeks, he said.

Tactical Risk

Abortion-rights challenges can be risky, according to Sam Lee, an anti-abortion activist in St. Louis.

“If they file a lawsuit they could risk losing it all, but what if you don’t and the pro-life groups continue to chip away?” he said. “They haven’t been reluctant to file lawsuits, but that could change presuming there’s a Justice Amy Coney Barrett.”

Thomas Perille, head of the medical advisory team for the “Due Date Too Late” campaign, the chief organization supporting the Colorado ballot measure, said a constitutional lawyer helped write it.

“If it goes to the court, whether or not Amy Coney Barrett is there, it will survive scrutiny,” he said. “The opponents know that, and that’s why they’d much rather beat it at the ballot box.”

A recent poll by 9News and the nonpartisan website Colorado Politics found that voters surveyed said they opposed the measure 45% to 42%.

Millions Raised

The “No” forces are raising millions to defeat the measure, while proponents have “virtually no money of any kind,” with zero coming from outside groups, Perille said.

Two committees that support the measure, the Coalition for Women and Children and the Alliance for Life, raised $239,880 in monetary and non-monetary contributions since Jan. 1, according to an Oct. 19 report from the Colorado secretary of state. Two committees opposing the measure, led by Abortion Access for All, raised $7,491,714. The coalition has spent $146,358 and Abortion Access for All, $6,345,320, the office said.

‘Trigger’ Effect

The Louisiana measure would have no immediate effect on the three clinics in the state that provide abortions.

If Roe v. Wade were to be overturned by the U.S. Supreme Court, it would limit interpretations of the state Constitution that might otherwise support abortion under the rights of privacy or due process.

Louisiana already has a “trigger” law on the books to ban abortion in that situation. State lawmakers have approved many other abortion restrictions, as well.

Without the amendment, abortion-rights advocates could challenge the state Constitution “to take taxpayer dollars that generally go to your hospitals and health care to pay for abortions,” one of the measure’s co-authors, state Sen. Katrina Jackson (D), told supporters in New Roads, La., on Oct. 3.

Voters are being asked to express “not just how we wholeheartedly feel about life, but our ability not to have our money that we believe should go to health care, as it always has, to go to fund abortion,” Jackson said.

Abortion-rights advocates say they hope voters will note that the amendment has no exceptions for rape or incest.

To contact the reporters on this story: Tripp Baltz in Denver at abaltz@bloomberglaw.com; Jennifer Kay in Miami at jkay@bloomberglaw.com

To contact the editor responsible for this story: Tina May at tmay@bloomberglaw.com