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No block for de facto ban on touting abortion ‘reversal’ medication in Colorado

The state has no intention of enforcing the law before the Colorado Medical Board has weighed in with rules in October.

(CN) — A federal judge denied a preliminary injunction request by a Catholic health care clinic on Friday because the Colorado Attorney General’s Office has pledged not to enforce a new law until the state medical board has weighed in on whether abortion reversal treatment meets professional standards of practice.

"A preliminary injunction is not necessary, and therefore not appropriate, at this time because the defendants have represented to the court that they are treating SB 23-190 as if it were not yet in effect and has not changed preexisting law,” wrote U.S. District Judge Daniel D. Domenico in a 7-page order.

Democratic Governor Jared Polis signed SB23-190, “Deceptive Trade Practice Pregnancy-Related Service,” on April 14. The law considers it a deceptive trade practice for medical professionals to offer abortion reversal medication unless the state medical board finds the practice meets acceptable standards.

Two drugs are typically used in a medication abortion — one to thin the uterine lining and one to drive contractions. Progesterone, a medication that thickens the uterine lining and eases contractions, can be prescribed to counteract the uterine-thinning effects of mifepristone before contraction-inducing misoprostol is taken.

Progesterone can also be prescribed to women at risk of miscarriage.

SB23-190 took effect immediately.

Bella Health and Wellness, a Catholic health care clinic with three locations in the Denver metro, filed a federal lawsuit on April 14 asking the court to allow it to continue prescribing progesterone to women looking to counteract a medicine-induced abortion.

Domenico — a Donald Trump appointee — issued a temporary restraining order and held a preliminary injunction hearing this week. Ahead of the hearing, Domenico disclosed he became friends with several of the named defendants during his legal career and time as a solicitor general for the state. Domenico is also a member of the Federalist Society.

On behalf of the state, Senior Assistant Attorney General Michael Kotlarczyk disavowed enforcement of the law until three state licensing boards have addressed the issue through rulemaking in October.

Representing Bella, attorneys for the Becket Fund for Religious Liberty asked the judge to memorize the state's commitment through an injunction. Domenico declined.

“Colorado’s attorney general ran away from this law once he realized the Legislature had shot from the hip,” said Rebekah Ricketts, counsel at Becket, in a statement. “Now that the state has promised under oath to act as if the law does not exist, women in Colorado will not be forced to undergo abortions they seek to reverse."

The Attorney General’s Office declined to comment on the development.

"While there is room for lawyerly quibbling with some of the language used in the defendants’ declarations, I am satisfied that the defendants’ intent and commitment to the court is that they will preserve the status quo ante SB 23-190 at least until the rulemaking process contemplated by the bill takes place,” Domenico wrote. “Since the sole purpose of the plaintiffs’ requested preliminary injunction is to preserve that status quo, it is not warranted."

Judge Domenico directed the state to update the court within two days of any related rulemaking action from the Colorado Medical Board, the State Board of Pharmacy or the State Board of Nursing.

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