Sarah Weddington, the lawyer who at age 27 successfully argued Roe v. Wade at the U.S. Supreme Court, figured the landmark ruling that legalized abortion nationwide in 1973 would be followed by a short spurt of controversy.
Some 45 years later, Weddington said by phone last week from her home in Austin that, “I thought with Roe there would be an initial time when lots of people very opposed to abortion would be fighting it, but that then it would settle down and people would accept that women have the right to make their own decision.”
Weddington, she knows now, assumed incorrectly. Though Roe v. Wade made abortion legal, for many it didn’t legitimize the procedure, which continues to have enormous stigma.
Not only did Roe fail to win universal acceptance over time — public support for abortion is at an all-time high, though 40 percent of Americans still feel it should be illegal in most or all cases, Pew Research Center found — but its standing as the law of the land is now in considerable peril. It’s entirely possible that Brett Kavanaugh, President Trump’s pick to succeed Justice Anthony Kennedy, could be confirmed to the U.S. Supreme Court and then join conservative justices in overturning or substantially gutting the protections for which Weddington argued.
“I think it’s a dire threat,” she said.
“I’ve been working on this for 50 years, and I just didn’t think this would be an issue that would be passed on to younger people. But it is.”
Outlook in Colorado
There are a seemingly unlimited number of ways access to abortion is curtailed around the country. From 2010 to 2016, the pro-choice Guttmacher Institute reported, states passed 338 new laws restricting abortion, and more than 1,000 such restrictions have been enacted in the U.S. since 1973.
But if Roe, the most significant abortion law of them all, is overturned in the near future, the regulation of abortion would become a state issue. It won’t happen immediately if it happens at all, as relevant lawsuits would have to wind their way up to D.C., which could take several years.
And if it happens, it will matter who controls Colorado’s state legislature and Governor’s Mansion.
“People really need to know if Roe goes away, you need to be asking your representatives what their stance is because they will have the power to protect abortion access or outlaw it,” said Elizabeth Hinkley, a reproductive rights lawyer with the ACLU of Colorado.
If Roe is overturned, so-called “trigger laws” already passed in Louisiana, Mississippi and both Dakotas would make abortion illegal in those four states. Ten states still have laws predating Roe that ban abortion and were never repealed. Eight other states have passed laws written explicitly to protect abortion rights.
Colorado doesn’t fall in any of these categories.
In 21 U.S. states, abortion is illegal either at or before the 25-week mark. In another 21, it’s illegal after “viability,” the point at which the fetus is considered able to survive outside the womb, which differs by case but generally falls between 22 and 24 weeks.
In Colorado and seven other states, there are no restrictions on the point at which a woman can obtain an abortion. Any resident under the age of 50 has never known a Colorado where abortion wasn’t legal in some form. A 1967 state law that legalized the practice in certain cases — and was amended in 2013 to add further protections — helped build the state’s reputation as relatively open to abortion six years before Roe, and it maintains that reputation today.
But, absent an explicit protection for abortion rights, and with anti-abortion lawmakers in power, the state could wind up with new restrictions.
Right now, Colorado’s House is controlled by Democrats and its Senate is controlled by Republicans, though that could change in November. Gov. John Hickenlooper, a pro-choice Democrat, is term-limited, and will be replaced by whoever wins the general election.
U.S. Rep. Jared Polis, the Democratic nominee for governor, is pro-choice.
“If Roe vs. Wade is overturned, it will put in jeopardy the health care and the basic freedom of women across the United States,” he told The Colorado Independent on Monday. “But no matter what the courts do, we can take action here in Colorado to protect access to reproductive services and to defend every woman’s fundamental right to make her own health care decisions. That’s what I’ll do as governor.”
Stapleton, a Republican currently serving as state treasurer, has signaled very little regarding his abortion stance. He has vowed to defend the existing ban in Colorado on state funding for abortion and he has said he’d work as governor to protect “the born and unborn.” He also has tapped Lang Sias, who as a state representative received an “F” grade from NARAL Pro-Choice Colorado, as his running mate.
But Stapleton seems to have made an effort to keep abortion off his campaign platform, making no mention of the issue on his website and declining comment to anti-abortion groups and media outlets alike. Campaign spokesmen did not return texts, calls or emails for this story.
Pro-choice groups and activists in Colorado are sounding the alarm right now, as are their counterparts in other states.
“The day that many of us have been worried about — the day that the Supreme Court suddenly becomes a 5-4 majority for restricting abortion rights, has arrived,” said U.S. Rep. Diana DeGette of Denver, who co-chairs the Congressional Pro-Choice Caucus. “Colorado voters who care about choice need to make sure about the candidates they’re looking at.
“Even though Colorado does have fairly good laws on the books, they could be taken away if Roe v. Wade were overturned.”
There have been repeated, failed attempts in Colorado’s legislature that would restrict and in some cases ban abortion. Most agree it’s extremely unlikely any heavily restrictive bill would advance in Colorado, primarily because that would require a GOP takeover of the House, Senate and governorship.
State lawmakers perennially try various anti-abortion bills, including bills to install “personhood” status for fetuses — effectively a ban on legal abortion and some forms of birth control — and to make abortion a class 1 felony that’s punishable by life imprisonment or the death penalty. Such bills come up regularly at the State Capitol, but never go anywhere.
“Republicans controlling all chambers in Colorado is just as unlikely as personhood” becoming law, said state Sen. Owen Hill, a Republican from Colorado Springs.
Hill said he’s hoping that Roe gets overturned because he believes abortion should be legislated on a state-by-state basis. He said he thinks there’s an opportunity to “unify” people in Colorado around a law that bans abortion after the point of “viability.”
“I think that’s a healthy middle ground,” he said.
K.C. Becker, the Democratic representative from Boulder and the House majority leader, didn’t seem to think Colorado’s laws governing access to reproductive health care are going to trend toward the anti-abortion side.
“I think there’s a lot to fear about Kavanaugh’s appointment,” she said. “But in Colorado, I think as long as there are Democrats in control of one of the chambers, we’re going to continue to protect health care.”
She added, “Colorado has good laws in place for women seeking an abortion. We think there’s more work to be done.”
Becker is one of several pro-choice people interviewed for this story who mentioned that Colorado could be most impacted by a Roe reversal not at the state legislative level, but in terms of added stress on the state’s existing clinics. If neighboring states move to restrict access, some are predicting it’ll mean people travel in greater numbers to Colorado for their reproductive health care.
Those who oppose liberal abortion laws have, in many cases recently, discussed the effect of Kavanaugh’s potential confirmation as simply unknowable.
“I don’t think anyone can predict how he would come down on something like this,” Lynn Grandon, director of the Respect Life office at Catholic Charities in the Archdiocese of Denver, told The Denver Post in an interview about Kavanaugh.
President Trump made plain that he was looking for Supreme Court justices who are anti-abortion, telling a Fox News reporter who asked him whether he’d like to see Roe overturned: “Well, if we put another two or perhaps three justices on, that’s really what’s going to be — that will happen and that will happen automatically in my opinion because I am putting pro-life justices on the court.”
Marcy McGovern is executive director of Alternatives Pregnancy Center, a crisis pregnancy clinic that offers a “meaningful alternative to abortion.” There are at least 70 such centers in Colorado, according to NARAL’s count.
“I couldn’t possibly surmise what’s going to happen” to abortion laws in Colorado under a new Supreme Court, McGovern said.
Protections vs. reality
The kind of centers McGovern oversees now outnumber abortion providers in Colorado by about two to one. Alternatives, which operates only about 10 percent of the crisis pregnancy centers in Colorado, reported it worked with 6,400 clients last year.
Such centers were buoyed by the U.S. Supreme Court just last month when Kennedy and the four other court conservatives ruled that California cannot force “crisis pregnancy centers” to give clients information about how to end unwanted pregnancies.
Scott Skinner-Thompson, a professor of constitutional law and civil rights at the University of Colorado, said he believes that, under a new court make-up, future rulings related to abortion — if not directly about the question of whether the procedure should be illegal — would also spell further restriction to access.
“I’m less concerned about the abstract right to an abortion being overturned,” he said. “What I think is more likely is that the state laws that nickel and dime the right to abortion and place lots of burdens and barriers to accessing abortion will be upheld.
“To me, it’s not so much that the legal right to abortion will be taken away, but that states will be enabled to create immense obstacles, making that right less meaningful.”
Karla Gonzalez Garcia, the policy director at Colorado Organization for Latina Opportunity and Reproductive Rights, said that in Colorado, communities of color, low-income women and women in rural areas are already well acquainted with how empty Roe’s protections can be in practice.
There are no clinics providing abortion in four out of every five counties in the state. Public funding for abortion is available only in cases of life endangerment, rape or incest, which means that people must often come up with several hundred dollars, at a minimum, to afford the procedure — to say nothing of the language and transit hurdles they may face depending on background and location.
“People say, ‘Crisis! Crisis! Roe v. Wade,’” Gonzalez Garcia said. “Yes, but, hello, our communities have been suffering from the lack of access to all the reproductive health services that we need.
“We think of this as the white-led perspective. People are in this crisis mode, but let’s be honest here: We need to talk about access” as things stand right now, she added.
Gonzalez Garcia recounted some of the panic she’s been hearing, including the common fear that if the right to safe and legal abortion is further limited in the U.S., women who seek out unsafe abortions out of desperation will receive poor treatment and perhaps even die.
She said she already sees such circumstances in Colorado, and when asked about that statement, she offers a slew of anecdotes, including one about a mom of three who wanted an abortion early in her pregnancy but couldn’t afford the $300 procedure because she makes just $15,000 a year. But when pressed for data, Gonzalez Garcia can’t offer any because there have been no comprehensive study of disparities in abortion access in Colorado.
“Our stories are completely erased from the picture, even in this crisis moment,” she said. “We’re still trying to say ‘Hey, actually, this has been happening to our communities for a long time.’”
Bennet and Gardner
There are 51 Republicans in the U.S. Senate, but with John McCain in Arizona fighting brain cancer, Brett Kavanaugh needs all 50 remaining Republicans for confirmation if, that is, the 49 Democratic senators hold firm against him. At least three Democrats, though, are thought to be wavering.
Colorado’s two senators split their votes the last time there was a Supreme Court vacancy. Cory Gardner voted to confirm Neil Gorsuch and Michael Bennet voted against.
This time around, Bennet says he has “grave concerns” about Kavanaugh, though he’s not said how he’ll vote. Gardner’s thinking is potentially more significant, however, since he, like all Senate Republicans, could have the opportunity to single-handedly alter the confirmation process.
But that seems unlikely.
Gardner sent Trump a letter just days before Kavanaugh was nominated urging the president to nominate Colorado’s Allison Eid, a judge on the Tenth U.S. Circuit Court of Appeals. Eid and Kavanaugh were both on Trump’s shortlist, so it stands to reason that a senator so enthusiastically supportive of one shortlister in Eid would support the one who ended up getting nominated.
In a statement, Gardner said, “I hope my colleagues on both sides of the aisle will thoughtfully and thoroughly review (Kavanaugh) during the confirmation process and carefully consider him rather than making a knee-jerk decision based on politics and nothing else.”
It’s unclear when the Senate will vote, though Majority Leader Mitch McConnell has warned Democrats that he may call a vote before the November midterms. The Trump administration wants Kavanaugh’s nomination secured before the Supreme Court reconvenes in October.