[UPDATED on Sept. 27]
Colorado voters are deciding a ballot question that seeks to limit how far into pregnancy an abortion can be legally performed. While the measure would change the law only in Colorado, it would resonate throughout the Rocky Mountain states and Midwest amid an intensifying national fight, fueled by a Supreme Court vacancy, over the future of abortion.
In 1967 — six years before the Supreme Court’s Roe v. Wade decision protected the right to an abortion in the U.S. — Colorado became the first state to pass a law widening access to legal abortion. More than 50 years later, it remains one of just seven states without gestational limits on the procedure, making Colorado one of the few options for people nationwide who need abortions later in pregnancy.
Proposition 115 seeks to change that. It would outlaw abortion in the state after 22 weeks. The proposition makes an exception to save the life of the pregnant person, but none for cases of rape or incest or to protect the health of the pregnant individual or fetus.
But the impact of the measure also would be felt by neighboring states where people have little or no access to abortion. Kelly Baden, vice president of reproductive rights at the left-leaning policy group State Innovation Exchange, called the surrounding region an abortion desert.
“Colorado really plays an important role in the region in being a haven for access for people who live in those highly restrictive states, some of which neighbor us, like Kansas, Nebraska — that whole swath of the Midwest from the Dakotas on down to Texas,” Baden said.
Colorado providers have stepped in, and approximately 1 in 10 abortions are performed on people from out of state. A billboard on Interstate 70 welcomed visitors from Utah with the message “Welcome to Colorado, where you can get a safe, legal abortion.”
Colorado voters have rejected three abortion-related ballot measures since 2008, which advocates pointed to as evidence that the state’s residents are fine with the status quo.
“Colorado has already voted on ridiculous abortion restrictions multiple times and said, ‘We don’t want them.’ It’s insulting that these extremists keep trying,” said Whitney Woods, speaking on her own behalf while on maternity leave from Planned Parenthood of the Rocky Mountains.
Over the past decade, however, those measures have been rejected by smaller and smaller margins, said Bob Enyart, a spokesperson for Colorado Right to Life — an anti-abortion group that opposes Proposition 115 because it doesn’t go far enough to end the practice.
“Coloradoans increasingly voted to recognize each unborn child as a person from 2008 to 2010 to 2014,” said Enyart.
Indeed, 2008’s Amendment 48, which proposed redefining personhood in the state constitution as starting at conception, received support from 27% of voters. Six years later, that support grew to 35% for Amendment 67.
A recent poll by 9News in Denver and Colorado Politics showed that voters are more evenly divided about the new proposition, with 45% saying they’ll vote no, 42% planning to vote yes, and a crucial 13% still undecided.
Randi Davis, a mom in Aurora, is one voter whose own experience illustrates how personal and nuanced the question can be. When she was pregnant, Davis was advised to have an abortion, as her baby’s odds of survival were slim to none. She said she opted against abortion and went on to give birth to a full-term stillborn baby.
“I’m not necessarily for abortion,” Davis said. “However, I do believe every woman should have their own choice to abort for whatever reason.”
She said she’s voting against the proposition.
Dr. Thomas Perille heads the medical advisory team for the Coalition for Women and Children (also known as Due Date Too Late), the group that petitioned to put Proposition 115 on the ballot and calls abortions later in pregnancy “too extreme.” Perille contends the new proposition “bears no relation” to the previous measures, giving it a better chance of passing.
“Those were bans on abortion, and Prop 115 is a reasonable restriction of abortion after fetal viability,” he said.
Abortion-rights activists worry that bans of abortions after the first trimester aim to gradually shift public opinion and gain traction to fully outlaw the procedure.
“They’re hoping that they can slide this under the radar and really cast it as a compromise between anti-abortion and pro-choice voters,” said Fawn Bolak, spokesperson for ProgressNow Colorado. “But that’s not what this is. This is a violation of Roe v. Wade.”
Perille said that, while first-trimester abortions are “relatively safe,” late abortions pose a “substantial risk” to the people having them. Advocates for the initiative said studies show the risk of death to the pregnant person from an abortion increases with each week of gestation.
Opponents point to another study that shows legal abortions overall tend to be safer and pose less of a threat to pregnant people’s lives than childbirth.
Colorado isn’t the only state voting on an abortion initiative this election cycle. Voters in Louisiana are considering a constitutional amendment that says nothing in the state constitution can be interpreted as protecting a right to, or requiring funding of, abortion.
The measure’s advocates say that, if Roe v. Wade is overturned, the legality of abortion in Louisiana would be up to state lawmakers. Opponents say the measure, if it passes, would eliminate legal access to abortion in the state if Roe v. Wade is dismantled.
“Constitutions are supposed to be about preserving and enshrining freedom, but this amendment takes away freedom and rights while allowing the government to tell people what they can and cannot do with their body,” said Michelle Erenberg, executive director for Lift Louisiana, a group that advocates for abortion rights.
Abortion-rights advocates also point out that Louisiana passed its own 22-week abortion ban a decade ago, and worry that Colorado could follow a similar path toward even greater restrictions.
The decisions before voters in Colorado and Louisiana come amid renewed attention nationwide on abortions since Supreme Court Justice Ruth Bader Ginsberg’s death last month. Senate Republicans are now pushing through President Donald Trump’s nominee, Judge Amy Coney Barrett. That has led voters and activists on both sides of the issue to become heavily focused on what Barrett’s appointment could mean for the future of Roe v. Wade.
Abortion opponents contend it’s not clear that Barrett’s confirmation would doom Roe.
“We have seen no evidence that Amy Coney Barrett has ever recognized that the unborn child is a person or has a right to life,” Enyart said. “We are concerned that she may disagree with the Roe opinion merely as a matter of process, not morality.”
But The Guardian recently reported on Barrett’s previous involvement with an anti-abortion organization, noting she signed a newspaper ad that called Roe “barbaric,” which put abortion-rights advocates on edge.
Erika Christensen, who helped pass New York’s Reproductive Health Act, said she is concerned but added that these new threats to abortion rights have become a rallying point for advocates.
Baden agreed, saying the renewed energy is particularly strong locally.
“We need to turn to the state level, and do whatever we can to prepare for what might come one day, be it from the Supreme Court or from another Trump executive order, or something else coming,” she said. “Roe is the floor, not the ceiling, right?”
[Correction: This story was updated on Oct. 27, 2020, at 12:15 p.m. ET to correct Colorado Right to Life’s position on Proposition 115. The organization opposes the ballot initiative.]