Protecting Human Lives in Colorado

Written Testimony of Catherine Glenn Foster, M.A., J.D. President & CEO, Americans United for Life. In Support of HB 23-1119
Submitted to the House Committee on Health & Insurance

Dear Chair Daugherty and Members of the Committee:

I serve as President & CEO of Americans United for Life (AUL), America’s original and most active pro-life legal advocacy organization. Founded in 1971, two years before the Supreme Court’s decision in Roe v. Wade, AUL has dedicated over 50 years to advocating for comprehensive legal protections for human life from fertilization to natural death. AUL attorneys are highly regarded experts on the Constitution and legal issues touching on abortion and are often consulted on various bills, amendments, and ongoing litigation across the country. For five decades, AUL’s staff, supporters, and partners have worked tirelessly to advance the human right to life in culture, law, and policy. I appreciate the opportunity to submit legal testimony concerning HB 23-1119, a bill to abolish abortion in Colorado.

The Bill Properly Furthers a Legitimate State Interest in Protecting Human Lives

For many years, abortion has been marketed as healthcare, even touted as essential medical treatment. Yet that could not be farther from the truth. Abortion exploits women and kills innocent preborn life. From conception, the preborn human being has a unique and complete genetic composition derived from both the mother and the father. As early as five (5) weeks’ gestation, the preborn human being’s heart begins beating. The preborn human being begins to move about in the womb at approximately eight (8) weeks’ gestation.

Not only does abortion destroy a preborn child, it is also a devastating practice for women. Women become more isolated through abortion. Elective abortion does not improve the mother’s physical or mental health, nor heal her in any capacity. As scholarship recognizes, “both sides agree that (a) abortion is consistently associated with elevated rates of mental illness compared to women without a history of abortion; (b) the abortion experience directly contributes to mental health problems for at least some women.”

Due to its destructive effects on families, mothers, and children, abortion has distorted the medical profession’s societal role as healers. The Hippocratic Oath is known as one of the most important steps in becoming a doctor, promising primum non nocere or “to do no harm.” In 2020, harm abounded through over 930,000 reported abortions in the United States.

Simultaneously, fetal medicine in the modern age has drastically developed since the Supreme Court handed down Roe v. Wade in 1973. Ultrasonography visibly shows the development and humanity of the unborn child. Fetal medicine has become a technologically advanced specialty, empowering doctors to perform surgery on the unborn child in utero. For example, prenatal surgery is available for pulmonary hypoplasia. This condition is a life-threatening disorder that occurs when an infant’s underdeveloped lungs cannot breathe on their own. Surgical techniques allow for early intervention, promoting lung development so that the preborn child is born with full breathing capabilities. Women and preborn children have more options than ever before for a healthy delivery.

When the Supreme Court handed down Dobbs v. Jackson Women’s Health Organization, there was renewed hope that abortion violence could be eradicated. As the Court recognized, “[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” Accordingly, the Supreme Court held, “[i]t is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” The Court further recognized States may abolish abortion to further legitimate governmental interests, which “include respect for and preservation of prenatal life at all stages of development . . . the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; [and] the preservation of the integrity of the medical profession . . . .”

Colorado certainly has an interest in protecting human life from the moment that life comes into existence until natural death.

The Bill Clearly Treats All Life, Including Human Beings in the Womb, With Dignity

HB 23-1119 ensures that a unique genetic individual in the womb is treated with dignity for who they are, a human being, by reversing the tragedy of current Colorado law.

Current Colorado law has no limits on the abortions it allows. This goes well beyond even the allowance in the recently overturned Roe decision. In Roe, the Supreme Court at least recognized that “a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.” The language of HB 23-1119 explicitly removes this important role of the State, prohibiting restrictions by preventing any law that “denies or interferes with … their fundamental right to choose to have an abortion.” In so doing, abortion is effectively on-demand at any point in the pregnancy up until birth.

Time and again, the pre-Dobbs Supreme Court recognized the need to protect life and provisions to ensure the informed consent and health of the woman on whose child the abortion will be performed. The Supreme Court reiterated that the “State has a legitimate interest in seeing to it that abortion, like any medical procedure, is performed under circumstances that insure maximum safety for the patient.” This Bill would repair Colorado’s abdication to act upon its legitimate interest in protecting life and ensuring the mother’s health.

Current Colorado law denies:

1. A complete, genetically unique (except for monozygotic twins) individual member of the species homo sapiens exists at the moment a sperm fertilizes an egg;
2. Between five (5) and six (6) weeks’ gestation, the preborn human being’s heart begins beating;
3. The preborn human being begins to move about in the womb at approximately eight (8) weeks’ gestation;
4. At about nine (9) weeks’ gestation, all basic physiological functions are present. Teeth and eyes are present, as well as external genitalia;

5. A human being’s vital organs begin to function at approximately ten (10) weeks’ gestation. Hair, fingernails, and toenails begin to form;
6. At eleven (11) weeks’ gestation, the preborn human’s diaphragm is developing, and he or she may even hiccup. He or she is beginning to move about freely in the womb;
7. At twelve (12) weeks’ gestation, the preborn human being can open and close his or her fingers. He or she starts to make sucking motions, and senses stimulation from the world outside the womb. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2243–2244 (2022). He or she has taken on “the human form” in all relevant aspects. Gonzales v. Carhart, 550 U.S. 124, 160 (2007);
8. When a pregnant woman presents to a doctor, the doctor has two patients, mother and unborn child; and
9. That no human beings are endowed by the Law with lesser fundamental rights than others, and that all persons enjoy the equal protection of the Law.

The Bill is Consistent with the American Legal Tradition on Abortion

As the Supreme Court explained in Dobbs, nothing in the American or English legal tradition protects abortion as a fundamental right. Rather, these traditions have criminalized abortion. The Supreme Court in Dobbs stated that “[u]ntil the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion.” When the United States adopted the Fourteenth Amendment, the majority of states had statutes criminalizing abortion at all gestational ages. Nothing in the writing or discussion around the Fourteenth Amendment suggested that any member of Congress or state lawmaker expected that it would create a national right to abortion. Accordingly, the Supreme Court in Dobbs overturned Roe v. Wade and held that “[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”

Citing its well-researched appendix of 19th century abortion laws, the Court notes:

By 1868, the year when the Fourteenth Amendment was ratified, three- quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening. . . . Of the nine States that had not yet criminalized abortion at all stages, all but one did so by 1910.

As new states entered the Union, “[a]ll of them criminalized abortion at all stages of pregnancy between 1850 (the Kingdom of Hawaii) and 1919 (New Mexico).” “By the end of the 1950s, according to the Roe Court’s own count, statutes in all but four States and the District of Columbia prohibited abortion ‘however and whenever performed, unless done to save or preserve the life of the mother.’” As the Court finds, “[t]his overwhelming consensus endured until the day Roe was decided.”

Accordingly, “[t]he inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”

The Court concludes: “Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

Thus, this bill is consistent with the country’s legal tradition that safeguards mothers and unborn children from the harms of abortion violence.

Conclusion

Colorado has a significant interest in protecting the health of both unborn children and their mothers. This bill ensures that unborn children are treated as what they are—full and complete members of the human family. For these reasons, I urge the Committee to support HB 23-1119.

Testimony was also given to Colorado in support of an Abortion Pill Reversal Bill.

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