The Past, Present, and Future of Abortion in Colorado

Editor’s note: On April 4, 2022, Colorado Governor Jared Polis signed the Reproductive Health Equity Act, a bill that Centennial State legislators ran in response to U.S. Supreme Court arguments about a Mississippi law that would ban abortion after 15 weeks. Those arguments indicated the possibility that the Supreme Court’s ruling on the case could overturn Roe v. Wade. The Reproductive Health Equity Act, which passed along party lines, enshrines the right to an abortion; says eggs, embryos, and fetuses lack standing under the law; and forbids public entities from restricting access to contraceptives or abortions. 

The patients just kept coming. They were overwhelming the Planned Parenthood clinic that’s tucked between a craft brewery and a four-star hotel on the edge of Denver’s Park Hill neighborhood. One woman’s water had broken prematurely, long before a fetus could survive outside her uterus. Another called, panicked, because her flight had been delayed, and she had an abortion scheduled that afternoon. Others just got in their cars and drove—hundreds of miles, for hours—crossing two, possibly three, state lines. All of their stories were different, but they had one thing in common: None of them could access abortion services in Texas, where they lived, and they had looked to providers in Colorado for help.

On September 1, 2021, Senate Bill 8—sometimes called the “heartbeat bill”—took effect in the Lone Star State. The law bans abortion once a fetal heartbeat has been detected, typically around six weeks into a pregnancy and before many people even realize they’re pregnant. That makes more than 80 percent of the approximately 56,000 abortions previously performed annually in the state illegal. The Texas statute is arguably one of the most restrictive in the country—there are no provisions for rape or incest—and it is unique in that it dispatches everyday citizens to enforce it by bringing suit against those who help women (and nonbinary and transgender people who can become pregnant) get abortions after cardiac activity is confirmed. Their potential reward? The promise of collecting at least $10,000 from the people they’ve sued if they win the case.

With SB 8 in effect, Texans in need of abortion services have had to look elsewhere, quietly. Whether family and friends taking care of the children of parents who flee the state to get an abortion could be sued under the new law is a vexing question and is just one of several hurdles for Texans who want to terminate their pregnancies.

Texas’ northernmost border comes within approximately 34 miles of the Colorado state line. But abortion-rights activists such as Laura Chapin, a consultant for Cobalt, a Denver nonprofit that advocates for abortion access and reproductive rights in Colorado, explain that asking some patients to get to Colorado is like asking them to fly to the moon. Money for the procedure—which can cost hundreds of dollars out of pocket—isn’t the only financial burden. Childcare. Transportation. A hotel stay. Missed days of work. It adds up quickly.

Amanda Carlson, director of the Cobalt Abortion Fund, an arm of Cobalt that provides financial assistance and support to people seeking abortions, recalls that years ago one woman who had traveled to Kentucky for the procedure was subsisting on free popcorn in a hotel lobby because she had spent all of her money on the appointment. To mitigate costs today, Carlson says, some women are trying to make out-of-state trips to obtain an abortion in Colorado in one day, flying out in the morning and back to Texas that night, sometimes boarding a plane for the first time in their lives or attempting to fly soon after the procedure even if they’d been sedated. It can be a dilemma for doctors trying to best care for their patients while realizing that some of them are unable to take two days off work. Their stories, says Dr. Kristina Tocce, vice president and medical director of Planned Parenthood of the Rocky Mountains, are “absolutely surreal.”

Although the Park Hill clinic saw a 520 percent increase in Texas patients in September compared with August, and Planned Parenthood of the Rocky Mountains—which covers Colorado, New Mexico, southern Nevada, and Wyoming—says 29 percent of its New Mexico clients were from Texas in the first two weeks of September, abortion-rights advocates know that many people couldn’t access help and were left instead to carry their pregnancies to term. That was the intention of SB 8, and that, Tocce says, makes her profoundly sad. It’s also why she and other abortion-rights advocates in Colorado are keeping an eye not only on other nearby states but also on the U.S. Supreme Court.

After a decadeslong campaign to end abortion in America, anti-abortion activists have seen recent success with SB 8 as well as with a Mississippi law that restricts most abortions after 15 weeks. The Supreme Court is currently considering both statutes, but after hearing arguments on December 1 in the Mississippi case, known as Dobbs v. Jackson Women’s Health Organization, a majority of justices appeared inclined to uphold the law, which would very likely overturn Roe v. Wade—the only ruling that currently protects abortion services in Colorado.

Once, before abortions were decriminalized in the United States and well before many people considered those protections settled law, there was a woman who moved to Colorado to ski. It was the early 1960s, and Susan Barnes, a recent Boston University graduate in her early 20s, got on a Denver-bound train dreaming of Aspen. When she arrived from Massachusetts, gaping at the sight of grown men wearing jeans on the train platform, she realized how far the mountain town was from the Mile High City and settled on the Front Range instead. She thought she would stay for the season, skiing at Winter Park Resort, and then continue on to San Francisco—to do what, she didn’t know. But she found work copy writing and ended up staying in Denver.

Barnes lived in an apartment on Capitol Hill with three other women. They skied and partied on weekends and generally took care of one another. That TLC did not disappear when one of Barnes’ roommates discovered she was unintentionally pregnant. The woman was frightened, and while her boyfriend gave her money for an abortion, he failed to offer emotional support. Her roommates tried to comfort her, and Barnes accompanied her to an appointment with her doctor. He would help, they thought. “We were very naive,” Barnes says.

Instead, he lectured his patient and admonished her for deigning to ask about an abortion. Barnes was indignant and suggested they call an attorney instead. The lawyer was kinder than the physician had been, but he didn’t provide any hope, either. What they wanted was illegal. At the time, Colorado only allowed abortions in cases of rape or if the pregnancy severely threatened the mother’s physical health.

Still, Barnes’ roommate was able to connect with someone who performed abortions despite the law. She handed over the money her boyfriend had given her and endured the procedure alone. Barnes can’t remember some of the details of that time. “I think it was so painful that I’ve papered that over in my memory,” she says. What she does remember is when her roommate returned to their apartment after the procedure, she was bleeding heavily. Her friends hurried her to an emergency room; she survived, but physical damage from the abortion left her unable to have children. “She was just beside herself,” Barnes says. Barnes blamed the law, which she viewed as unfair and cruel. She didn’t know it then, but she would have a chance to redress the situation in due time.

There are plenty of places in Colorado that may as well be in Texas or Mississippi in terms of abortion access—places like Durango, Cortez, Pueblo, Grand Junction, Montrose, and Craig. In fact, roughly 80 percent of Colorado counties don’t have health care clinics that provide abortions. There are only about a dozen clinics and/or practices in the state that will perform a surgical procedure to terminate a pregnancy.

Yet Colorado has long been thought of, by abortion-rights and anti-abortion activists alike, as a haven for abortion access because of its relatively liberal laws. There are three state-level restrictions: A minor’s parents must be notified before an abortion; public employees’ insurance cannot be used for most abortions; and public funding can only be used for abortions in certain instances. Significantly, Colorado is also one of only a handful of states that doesn’t limit at what point in a pregnancy an abortion can be performed.

At the same time, Colorado doesn’t have any laws that expressly protect the right to an abortion. Furthermore, according to the Center for Reproductive Rights, state courts have yet to determine whether the state constitution actually protects the right. If Roe v. Wade falls this coming June despite nearly 50 years of legal precedent, 2022 could be a reckoning for the state, forcing it to determine the role it wants to continue to play in the abortion-access landscape.

Looking at a map of the Rocky Mountain West and western Midwest, the terrain appears treacherous for abortion-rights activists should Roe v. Wade be weakened or dismantled at the federal level. The Center for Reproductive Rights expects that, if that were to be the case, only Colorado, New Mexico, Kansas, Montana, and Nevada would continue to provide access in a 14-state region. Based on the influx of patients Colorado saw both when Texas Governor Greg Abbott briefly banned abortions as nonessential procedures during the pandemic and when SB 8 went into effect, providers here could be unable to keep up with demand if patients were also coming from Oklahoma, Wyoming, Nebraska, Utah, Idaho, South Dakota, North Dakota, and Arizona.

Coloradans are already experiencing delays in care as Texans travel north. Texas is one of 12 states that has a “trigger law” that would ban all or nearly all abortions if Roe is overturned. How difficult would it be for Coloradans to access care in their own state, then? “We will do everything we can to serve the patients who are able to travel to us for the care they need,” says Neta Meltzer, strategic communications director for Planned Parenthood of the Rocky Mountains, “but we can’t meet that need alone. That’s some really staggering patient volume that we can’t absorb ourselves.”

The state Legislature will likely consider enacting laws to codify protections to ensure providers would even be able to serve those in need. And that can open the door to arguments—and concessions. “Anytime you draw a line, it makes it that much easier to move that line,” says Dr. Rebecca Cohen, an abortion provider in Denver. “Everything we put into law has the ability to be changed, and that is the challenge. How do we craft a policy that protects abortion rights in a safe and inclusive way and doesn’t become a target for people who are anti-abortion?”

It’s a fair question, considering that people like Susan Sutherland, a vice president with Colorado Right to Life who says she wants people “to stop murdering our fellow tiny Coloradans,” aren’t the only voices of dissent that people championing abortion rights are concerned about. Even those who support the right to choose sometimes believe choice has its limits. One Colorado provider, who would only speak on the condition of anonymity, says he supports restricting most elective abortions after a certain number of weeks.

The Women’s Health Protection Act, sponsored by Democrat Judy Chu of California and passed by the U.S. House of Representatives in September in response to the Texas law, aims to protect a person’s right to an abortion. It would also prohibit abortion bans after fetal viability “when, in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.” But while there’s wide support among abortion-rights advocates to send the bill to President Joe Biden’s desk and eliminate a patchwork of policies across the country, the legislation hasn’t made any progress in the Senate—and it’s unlikely to. That leaves state lawmakers and activists on both sides of the issue to fend for themselves.

Lauren Smith, an issue campaigns manager with New Era Colorado, an organization focused on youth civic engagement that, in part, works with students to fight abortion stigma and advocate for better policies, says it’s been exhausting to constantly be playing defense against efforts to roll back abortion access. “I’m ready to see the abortion-rights movement be on the offensive in Colorado,” she says. In addition to codifying abortion protections, she wants to see lawmakers address access inequity across the state and allow public funds to pay for abortions. The current public funds ban—at both the federal and Colorado state levels—affects more than people insured through Medicaid. Teachers, bus drivers, city clerks, and everyone else who draws a government paycheck cannot use their insurance to cover the procedure in most cases.

There’s also broad concern among abortion-rights activists that low-income people and people of color will be disproportionately affected by any new abortion restrictions and other looming bans. “Abortion rights is racial justice,” Smith says. After SB 8 was enacted in Texas, where the 2020 census showed people of color made up nearly all of the state’s population growth in the previous decade and that the Latino population is now nearly as big as the non-Latino white population, some Coloradans in favor of abortion rights started to wonder if similar efforts to restrict access here could disproportionately affect Colorado’s communities of color, says Aurea Bolaños Perea, communications and policy manager at the Colorado Organization for Latina Opportunity and Reproductive Rights, or COLOR. “We’re not going to let that happen,” she says. “Colorado must be the state that protects the disenfranchised.”

Galvanized by the Texas ban and Supreme Court hearings, several Colorado lawmakers working with Cobalt and COLOR said in December they plan to introduce legislation in the current session that would consecrate abortion rights for Coloradans. “We really feel the moral imperative to act now,” says Representative Meg Froelich, a Democrat who is co-sponsoring the Reproductive Health Equity Act in the House. She says the “lean and mean” bill will establish that people have a fundamental right to contraception and abortion and that fetuses don’t have independent rights under the laws of the state. Colorado occupies a unique position in the West, says state Senator Julie Gonzales, a Democrat and the bill’s Senate sponsor: “Our protections, in many ways, predated Roe v. Wade.”

Several years after moving to Denver, Susan Barnes applied and was accepted to a handful of law schools, but she decided to stay in Colorado after the University of Denver offered her a full scholarship. She was in her final year in 1966 when she enrolled in a winter quarter seminar about drafting legislation. She was anxious to graduate that spring and begin her professional life, hopefully as a trial lawyer. But she remembers being intrigued by the assignment for their final project: writing a statute for the state of Colorado.

Harry Lawson, the adjunct professor who taught the seminar, told his students they should put themselves in the shoes of a legislator and pick an issue they felt passionately about. They would need to dig into the issue’s history, he said, and consider how politics would affect whether the hypothetical legislation would pass. Barnes thought about her old roommate in Capitol Hill and decided to write a bill amending the state’s criminal law on abortion.

Barnes had recently married, but she found herself wondering whether she would seek an abortion if she had an unwanted pregnancy. She didn’t think she would; however, she knew that she would want to be able to make that choice for herself.

She was 28 by then, one of two women in a cohort of about 100 in the law school. She still liked to ski, but after growing up in the segregated South, in North Carolina, Barnes had also grown interested in civil rights, flying to Montgomery, Alabama, in 1965 to march with Martin Luther King Jr., John Lewis, and other Americans seeking racial justice in the United States. She was outgoing and idealistic. So were her friends Dick and Dottie Lamm, whom she met through the activist group Young Democrats. It was Dottie who had suggested Barnes date the man who would become her husband, floating his name one day as the women rode the chairlift up the mountain at Winter Park. Dick, meanwhile, had been elected to the state House of Representatives the previous year.

Barnes knew Dick had grown curious about Colorado’s abortion laws after a trip to Peru a few years earlier, where he and his wife had encountered a hospital ward full of women recovering from illegal or self-induced abortions. She called to see if he happened to have a file of research on the issue that she could borrow for her project. “I’d be happy to give you my file, Susie,” he said, “if you will give me your bill.”

Barnes wrote the legislation, turned it in to her professor, and returned Lamm’s file with a copy of the faux statute tucked inside. She didn’t hear any more about it until Lawson handed her the graded assignment. She had received the highest mark in the class. But the professor also knew something she didn’t: Lamm had filed her bill at the Statehouse. “You were not required to introduce your legislation with 32 co-sponsors,” Lawson told Barnes wryly.

In the end, the number of co-sponsors was actually about twice that number. When the bill—put forward by Lamm and Republican John Bermingham—was signed in April 1967 by Governor John Love, another Republican, it was the first law in the country decriminalizing abortion restrictions so that the procedure would be allowed for reasons other than rape or an imminent threat to the woman’s physical health. Lamm and Bermingham’s bill was still relatively conservative by today’s standards. Abortions had to be performed within the first 16 weeks of pregnancy in accredited hospitals and required the permission of a panel of three physicians. Wives needed their husbands’ sign-offs, and minors couldn’t get an abortion without their parents’ approval. The procedure was only allowed in cases where the pregnancy presented a severe threat to the mother’s mental or physical health, in cases of incest or rape, or if the child was likely to be born with a disability.

Before signing the bill, Love said it was “one of the more important and difficult decisions of my experience in office.” He had received some 5,000 letters and telegraphs, about half in favor of the legislation and half against. Opponents feared Colorado would become a so-called abortion mecca. But other states, like California and North Carolina, soon followed Colorado’s lead, and it wasn’t long before activists were calling for even less restrictive laws, questioning why patients needed the blessing of a panel, often made up of men, before they could terminate a pregnancy.

In 1973, the debate became moot, for the most part. The Supreme Court struck down several Texas laws that criminalized abortion in a decision that became a household name: Roe v. Wade said the U.S. Constitution protected a woman’s right to end a pregnancy. Colorado lawmakers never passed another law explicitly protecting abortion because they didn’t think they had to. That may be about to change.

“Hold a finger in the wind,” says Cobalt’s Laura Chapin, “and you can feel that Colorado is pro-choice.” But that doesn’t mean anti-abortion forces haven’t tried to change the way the breezes blow.

Voters in 2000 rejected a proposition supported by Focus on the Family and the Colorado Pro-Life Alliance that would have required doctors to give women certain information—about adoption agencies, risks, and more—at least 24 hours before their abortions. Coloradans also voted down three measures, in 2008, 2010, and 2014, that would have defined a fetus as a person. In 2020, Proposition 115, the most recent challenge to abortion access, would have banned abortions after 22 weeks of pregnancy. Abortion-rights activists spent more than $9 million to fight the measure. Nearly 59 percent of voters rejected the proposition, and, perhaps surprisingly, they weren’t all left of the political center. In seven counties, a majority of voters cast a ballot for Donald Trump in the presidential election but also voted no on Prop 115.

What the anti-abortion movement has planned for the Centennial State in 2022 is unclear, though legislation criminalizing abortion is perennially on the docket. The Susan B. Anthony List, a Virginia-based anti-abortion group, is already planning its state-level campaigns as if a “post-Roe” world is a fait accompli. And the same day Democratic state lawmakers said they intended to protect abortion rights in Colorado, Republican U.S. Representative Doug Lamborn of Colorado Springs introduced a bill that would scrub the word “fetus” from federal code and replace it instead with “unborn child.” “Every human life must be legally protected at every stage of biological development, from fertilization through natural death, no exceptions,” says Leslie Hanks, president of American Right to Life. “Although that goal seems daunting at this time in Colorado…the effort to educate Coloradans about the infinite value of every human being is an extremely rewarding endeavor.”

Fawn Bolak isn’t so sure anti-abortion advocates value every human being, especially those who experience unplanned pregnancies. Bolak, who, as a reproductive rights activist has spoken publicly about her abortion many times, says she’s been frustrated with the vilification of doctors and of patients. The Lakewood resident is also irritated with the notion that women feel forced to talk about why they ended their pregnancies. “No one should feel the need to explain themselves to anyone,” Bolak says, adding that people somehow feel entitled to an explanation, as if they will decide whose situation is worthy—and whose isn’t.

Bolak says she struggled with her emotions as she listened to oral arguments when the Supreme Court considered the Texas law this past November. Every time a new abortion ban is introduced, every time she hears political leaders talking about it, she thinks about her own experience: realizing that her morning coffee was making her nauseated, that her body felt different, and then discovering that her birth control had failed and she was already six weeks pregnant. Her partner, her family, and her friends all supported her. Still, she felt uneasy. “I think that’s an important piece of my story,” she says. “That goes to show you how culturally rooted abortion stigma is. As someone working in the movement for a few years, I had so much love and support surrounding me in this decision—even my colleagues are very supportive—and still I experienced internalized shame.”

Colorado abortion providers may not experience the same brand of self-reproof, but they certainly endure the vitriol. Some would not speak on the record for this article due to fear of retaliation. Others commented but did not want to use their names. Still, they are a devoted bunch. “I am an abortionist,” says the doctor who requested anonymity, “and I am pro-life. And I find nothing wrong with that, because the life I’m trying to save is the quality of life of the mother.”

That physician was semi-retired when SB 8 was enacted, spending the summer and the start of fall in another state, but he was ready to return to work “should the numbers increase and the need become more apparent,” he says. “I told myself, and my wife, if the need for abortion goes up, I’m there.”

Since the initial surge of Texas patients going to Planned Parenthood of the Rocky Mountains’ clinics, the number of patients traveling to Colorado, New Mexico, southern Nevada, and Wyoming for care has remained consistent. Before SB 8 went into effect, anywhere between five and 15 Texans sought abortions in the Rocky Mountain region in any given week. By the end of 2021, it was “consistently in the mid- to high 30s,” Meltzer, of Planned Parenthood of the Rocky Mountains, says.

Planned Parenthood has been preparing for several years to expand services to meet the needs of patients, both from Colorado and other states, like Texas. That includes increasing telehealth services—including telehealth medical abortions, in which a prescription drug ends the pregnancy, usually up to 11 weeks of gestation—and considering opening new health centers. They might also need to hire more providers. There’s still so much to do, Tocce says. “We’re analyzing infrastructure and expanding services as fast as possible,” she says. “Unfortunately, that’s something that’s not happening overnight, and this ban feels like it happened overnight.”

The attacks on abortion access have been a long time coming, though—“constant,” Cohen says. The Denver doctor thinks about providers in states with restrictive abortion policies and how some must face the prospect of criminal charges for providing their patients with care. “I hope every day I don’t have to make that choice,” she says. It’s difficult to work under that constant specter of threat. But, she says, she wants to be clear: “We are committed.”