From bakers to website designers, Colorado seems intent on persistently persecuting its religious believers. Bella Health and Wellness v. Weiser, the latest case at the forefront of the fight for life and faith in Colorado, may not be getting as much media attention as Masterpiece Cakeshop or 303 Creative, but it should.
Bella Health and Wellness started as an OB-GYN practice founded by a mother and daughter, both practicing Catholics and nurse practitioners, who were inspired to open a pro-life, faith-based medical clinic. The clinic has expanded into family medicine and now serves thousands of patients. Why would such a clinic end up in federal court? Because the organization, now represented by the lawyers at Becket, offers abortion pill reversal, which runs afoul of a new law in Colorado.
The abortion pill consists of two medicines, mifepristone and misoprostol. The first medicine blocks progesterone, a naturally occurring hormone in the body that is essential to maintaining a healthy pregnancy, especially in the first weeks after conception. In the abortion pill reversal process, progesterone is administered to counteracts the effects of mifepristone. (The treatment cannot be administered if both medicines have been taken.)
The new Colorado law, passed in April 2023, effectively bans this treatment:
A health-care provider engages in unprofessional conduct or is subject to discipline in this state if the health-care provider provides, prescribes, administers, or attempts medication abortion reversal in this state, unless the Colorado medical board, the state board of pharmacy, and the state board of nursing, in consultation with each other, each have in effect rules finding that it is a generally accepted standard of practice to engage in medication abortion reversal.
Thus, unless several state boards approve of the treatment, the act of providing any abortion pill reversal treatment is prohibited in Colorado.
This law clearly targets pro-life medical practitioners. After all, there are significant health (not to mention moral) concerns related to practices such as artificial birth control and the abortion pill, which can come with various side effects. Yet Colorado did not require state panels to approve these practices before medical professionals could prescribe them.
Progesterone, on the other hand, presents no serious side effects. It is commonly prescribed to post-menopausal women, as well as pregnant women who have naturally low progesterone and are at risk of miscarriage. While detractors claim that there is no evidence that the treatment helps prevent miscarriage, many pro-life medical professionals disagree. In any event, progesterone is a natural hormone, is commonly prescribed, and presents no serious risks. Thus the law banning abortion pill reversal seems to be an attack on a pro-life medical treatment and not a legitimate health law.
Bella Health, as a faith-based clinic, is not only asserting that the Colorado law lacks a rational basis, but that the law violates “their First Amendment rights to free speech and exercise of religion, as well as their patients’ free-speech, due-process, and equal-protection rights to receive information and medical treatment.” This raises the stakes: If government action interferes with First Amendment rights, the government has to prove that the law serves a compelling government interest and that it is narrowly tailored to achieve that interest.
Thankfully, the judge in Bella Health understood the Free Exercise issue at stake and ruled accordingly. On October 22, the court issued a preliminary injunction, which prevents Colorado from enforcing this law against Bella Health and “all those acting in concert with them” as the case proceeds toward trial. By granting the preliminary injunction, the court acknowledges that Bella Health is “substantially likely to succeed on the merits” and win the case. That is encouraging.
While a victory like this is worth celebrating, it should also be sobering. That a state legislature passed, and a state governor signed, a law that forbids the use of progesterone to reverse an abortion pill’s effects—even though its administration is allowed in other contexts—is alarming. This law was passed for the sole purpose of preventing a woman who has taken mifepristone and regretted it from trying to save her baby’s life.
The pro-life movement needs to be attentive to state laws and regulations that don’t often make the headlines. This year, the Napa Legal Institute released the Faith and Freedom Index, which analyzes state laws precisely to highlight how much “the boring stuff” matters. It is easy to follow the U.S. Supreme Court cases regarding religious liberty. But what about the state public accommodation laws and tax regimes that can quietly target religious individuals and organizations?
While the Colorado law in Bella Health was extreme enough to make some headlines and generate resistance, states often pass laws that burden religious exercise in ways that fly under the radar. The stakes are high and the opponents of religious practice in the public square are hard at work. The faithful should applaud cases like Bella Health where a court blocks enforcement of a law targeting a pro-life religious practice. But the faithful should also be vigilant. Legal attacks such as these are likely to continue.
Frank DeVito, an attorney, writes from eastern Pennsylvania. The views expressed by the author are not necessarily those of his employer.
Image by Larissa Puro licensed via Creative Commons. Image Cropped.
