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Colorado voters reject 22-week ban on abortion

The state remains one of seven with no gestational limits on the procedure.

Activists hold signs, one reading “love them both” and another reading “keep abortion legal.”
Activists on both sides of the abortion issue demonstrate in front of the the Supreme Court during the 47th annual March for Life on January 24 in Washington, DC.
Olivier Douliery/AFP via Getty Images

Colorado voters just rejected a measure that would have banned abortion in the state after 22 weeks’ gestation, according to the New York Times and the Associated Press.

The measure, Proposition 115, was backed by the anti-abortion group Due Date Too Late, which argued that abortions after 22 weeks were inhumane. But supporters of abortion rights were concerned about the impact of the measure on pregnant people, not just in Colorado, but around the country.

Abortions in the third trimester of pregnancy are rare, with nearly 99 percent of abortions happening before 22 weeks’ gestation. But a small percentage of patients seek abortion later in pregnancy, sometimes because of severe fetal abnormalities that can only be diagnosed at that time. Proposition 115 did not have an exception for such abnormalities, or for rape, incest, or the health of the pregnant person, allowing abortion only if it was “immediately required to save the life of a pregnant woman.”

That could mean providers would have to wait until a patient was actually dying to terminate a pregnancy, Karla Gonzales Garcia, policy director of the Colorado Organization for Latina Opportunity and Reproductive Rights (COLOR), which opposed the measure, told Vox. Such a barrier to a potentially life-saving procedure was especially egregious during a pandemic, Garcia said: “It’s just cruel.”

Abortion-rights advocates nationwide were especially concerned about the measure because Colorado is one of just seven states in the country with no gestational limit on abortion. That means patients seeking later abortions in states with such limits often come to Colorado for care, sometimes traveling thousands of miles to do so.

The failure of Proposition 115 means clinics in Colorado can continue providing abortions later in pregnancy, for now. But the issue isn’t going away on a national scale, with anti-abortion advocates zeroing in on later abortion in recent months, and Supreme Court Justice Amy Coney Barrett providing a potential deciding vote to overturn the landmark abortion rights case Roe v. Wade. Abortion-rights supporters in Colorado and around the country are aware they have a long road ahead of them.

Proposition 115 would have affected patients all over the country

Though a majority of abortions take place in the first trimester, people seek the procedure later in pregnancy for a variety of reasons. Sometimes barriers to abortion, from the expense of the procedure (which often isn’t covered by insurance) to the distance to a clinic, can delay patients’ access for weeks or even months. Meanwhile, some severe fetal abnormalities, such as certain problems with the heart or brain, are only diagnosed in the second or third trimester. That can leave pregnant patients with a difficult decision: whether to terminate what is sometimes a much-wanted pregnancy, or to give birth to a child who may not survive.

In most states, bans on abortion after 24 weeks — or sooner — prevent people from getting abortions later in pregnancy. But Colorado and six others — Alaska, New Jersey, New Hampshire, New Mexico, Oregon, and Vermont — do not place a time limit on the procedure.

The backers of Prop. 115 sought to change that, citing Gallup polls showing that a majority of Americans believe abortion should be illegal in the third trimester.

Abortion-rights advocates, meanwhile, argued that the measure would greatly increase the burden on people seeking abortions around the country. The ban would increase the average one-way distance a Colorado patient would have to travel to get an abortion later in pregnancy by 430 miles, Liza Fuentes and Elizabeth Nash of the Guttmacher Institute wrote in an op-ed in the Colorado Sun.

And while white, affluent patients might have the ability to travel that distance, it would be much harder for low-income Coloradans and for Latinx, Black, Indigenous, and other residents of color, who may face discrimination, language barriers, and citizenship issues that make any kind of health care challenging to access, Garcia said. “This proposition is racist at its core.”

Meanwhile, the 11 percent of patients who travel to Colorado from more than 30 other states would potentially have to travel even farther, and would lose one of relatively few places where abortion later in pregnancy is possible.

But in November’s election, voters rejected Prop. 115, meaning Colorado clinics can continue to provide abortions later in pregnancy, for now.

It’s a victory for abortion-rights groups in Colorado, but just one of what are sure to be many legislative battles on the issue in the years to come. Many Republicans, including President Trump, have focused on abortion later in pregnancy as a way of appealing to socially conservative voters, while also potentially pulling in moderates who may feel uncomfortable with third-trimester procedures. And with more than a dozen abortion cases just one step away from the Supreme Court, it’s likely only a matter of time before the justices — now with the addition of Barrett, who is personally opposed to abortion — get another opportunity to revisit Roe v. Wade.

The landscape of abortion law in America is in a time of flux — but in Colorado, for now, one attempt to usher in a more restrictive future has failed.