In post-Roe Colorado, could a city ordinance keep out a late-term abortionist?

Denver, Colo., Dec 9, 2022 / 11:05 am

A proposed ordinance in the southern Colorado city of Pueblo would require abortion clinics to follow federal law and allow citizens to file a civil complaint against any clinics that violate the law. The proposal comes after news that late-term abortionist LeRoy Carhart seeks to open an abortion clinic in the city.

The proposal asks U.S. attorneys for the District of Colorado “to investigate and prosecute all abortion providers and abortion-pill distribution networks.”

“We call upon victims of abortion providers and abortion-pill networks to sue these criminal racketeering enterprises,” the text says.

The ordinance text cites federal provisions of the 1873 Comstock law, which bar sending abortion-related items in the mail. The proposed ordinance says federal law imposes criminal liability on those who ship or receive abortion pills or abortion-related paraphernalia in interstate and foreign commerce. Violations may be prosecuted under the Racketeer Influenced and Corrupt Organizations Act (RICO).

The ordinance would require abortion clinics to obtain a city license and comply with this understanding of federal law. If the proposal becomes law, it requires enforcement of the law to take place “exclusively” through a right of private action. This enforcement mechanism resembles a Texas law that allowed lawsuits against abortion clinics that violate state law.

The ordinance passed its first reading Nov. 28 by a vote of 4-3, according to the Pueblo Chieftain.

Brittany Vessely, executive director of the Colorado Catholic Conference, told CNA Dec. 7 that the proposal is “a tremendous effort for life, protected in federal statute and within the rights of Puebloans to enforce themselves.”

Pueblo Mayor Nick Gradisar said he has not yet decided whether he would veto the ordinance if it passes. Five votes would be required to override a veto. The final vote, which could still be postponed, is currently scheduled for Dec. 12.

Pueblo, located more than 100 miles south of Denver, is the ninth-most populous city in Colorado with more than 111,000 people. The closest abortion clinic is in Colorado Springs, about 50 miles north of Pueblo.

Clinics for Abortion and Reproductive Excellence (CARE) has purchased a location in the city’s Bessemer neighborhood. It also has clinics in Nebraska and Maryland.

CARE’s medical director is LeRoy Carhart, a prolific late-term abortionist who waged a legal fight in Nebraska in the late 1990s and early 2000s to strike down the state’s ban on partial-birth abortions. He also unsuccessfully sued to block a 2003 federal ban on partial-birth abortions, which remains in place today. Carhart is one of the few abortion doctors in the country who openly performs abortions in the third trimester of pregnancy.

Pueblo City Councilwoman Regina Maestri, a sponsor of the ordinance, said it was a response to news that Carhart planned to open an abortion clinic.

“Pueblo has not really ever had an abortion clinic of this nature,” she told CNA Dec. 7. “My community doesn’t feel like we need to be hosting Dr. Carhart because he’s been unwelcome in other areas, in other cities.”

CNA sought comment from CARE but did not receive a response by publication.

The proposed Pueblo ordinance comes after a strong pro-abortion advocacy campaign in Colorado anticipating the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health decision, ending Roe v. Wade and returning abortion law to the states.

Earlier this year, the Colorado Legislature passed the strongly pro-abortion Reproductive Health Equity Act, which explicitly denies any legal rights to unborn children.

Vessely characterized the law as “abhorrent.” She told CNA it “removes all limits in favor of gruesome abortion on demand for the full 40 weeks.”

Maestri told CNA she was concerned about Colorado’s lack of abortion regulation, including its permission for non-doctors to perform an abortion under a licensed doctor. Another concern is that Carhart’s clinic is far from the nearest hospital emergency room that could accept a patient in case of complications.

“What’s important about this proposed ordinance is that it stops abortion clinics from coming in and setting up in Pueblo,” she said. The ordinance is “the only thing that we can put in place in order to stop the abortion clinics from coming to town until we feel that they’re properly regulated. It’s about women’s safety at this point.”

“The state of Colorado has been very negligent in legalizing abortion,” she said.

However, the proposed ordinance has its critics. Colorado Attorney General Phil Weiser, a Democrat who campaigned on a pro-abortion-rights position, is “committed to defending the Reproductive Health Equity Act and challenging any local ordinance that violates the law,” according to his director of communications, Lawrence Pacheco.

Sara Neel, a senior staff attorney for the Colorado ACLU, which backs abortion, said the Comstock laws the proposal cites are interpreted to apply only to unlawful items.

“Since abortion is lawful, and drugs have been approved by the FDA and even approved for mailing in the United States … I think their reliance on the Comstock laws is misplaced at the current time,” she said, according to the Pueblo Chieftain.

The city’s legal department has recommended the city council not adopt the ordinance.

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In Vessely’s view, the proposed ordinance is in line with Coloradan and American legal traditions.

“Pueblo is saying, ‘not in our city!’ which is a commendable act of federalism, intended by the founders of our country and state,” she said. “Late-term abortionists like Leroy Carhart, who acknowledge the humanity of the babies they murder in the womb and have caused the deaths of many women, have no place in Pueblo or in Colorado.”