Colorado doesn’t intend to cooperate with criminal or civil investigations against people who provide, assist with or receive abortions in the state, Gov. Jared Polis directed in an executive order Wednesday.
The executive order also requires the state Department of Regulatory Affairs to make sure that people who work in Colorado don’t face any disciplinary action against their professional licenses for those same reasons.
These are two issues abortion advocates have pushed for in the state, following the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, overturning protections offered by Roe v. Wade. Thirteen states have “trigger bans” that would automatically go into effect within 30 days of the ruling, prohibiting abortions in those states, and at least eight states have already banned them after the court’s decision.
Four states, including Colorado, have codified the right to abortion, according to the Guttmacher Institute, a research and reproductive rights advocacy organization. Colorado lawmakers passed a law earlier this year that codified abortion and other reproductive care as a right into state law, and lawmakers and activists are working to bring a ballot question in 2024 asking voters to approve the right in the state constitution.
In the meantime, Colorado providers are already seeing an increase in patients coming for abortions from other states and they expect that to continue to grow as almost half the country implemented restrictions or prohibitions on abortions.
“We are taking needed action to protect and defend individual freedom and protect the privacy of Coloradans,” Polis said in a written statement. “This important step will ensure that Colorado’s thriving economy and workforce are not impacted based on personal health decisions that are wrongly being criminalized in other states.”
Polis was not the only governor to issue this kind of executive order Wednesday. North Carolina Gov. Roy Cooper issued an order shielding out-of-state abortion patients from extradition and prohibiting state agencies from cooperating with other states’ prosecutions of those who travel to North Carolina for an abortion.
Lawmakers across the country have been discussing legislation to attempt to prevent their residents from crossing state laws to get abortions in states where they are legal, but there are still a lot of unknowns, according to Mark Silverstein, legal director of the American Civil Liberties Union of Colorado.
“I know people have been preparing and thinking about these things of what’ll happen once (an anti-abortion state) tries to exercise its power over to the abortion-legal states,” he said. “But I don’t think that there’s totally clear-cut answers because there’s a tremendous variety of possible contingencies. I think overall, we’re prepared to defend the governor and back him up on this one.”
Ian Farrell, an associate professor at the University of Denver’s Sturm College of Law, explained that because of a clause in the U.S. Constitution, Colorado would be required to extradite someone to another state if they’re a fugitive, meaning if someone had or aided an abortion in a state in which abortion was illegal and then came to Colorado, they could still be extradited back to the state in which they had their abortion. However, Farrell said, if they had or aided an abortion in Colorado where it is legal to do so, they would not be considered a fugitive and could not be extradited back to their state.
Farrell said it makes sense for Polis to enact this order because “Colorado doctors, nurses or health care providers could be the subject of extradition requests from a state like Texas or Louisiana, but only if they first enact one of these law that reaches into the conduct that occurs into another state.”
Ciara Anderson, an attorney with Denver-based Rathod Mohamedbhai law firm, said the order largely serves as an affirmation to doctors, health care providers and others assisting with abortion access in Colorado to solidify that they are protected and supported by the state.
“I really appreciate that the governor has signed this,” Anderson said. “I wish it hadn’t come to this, but glad to live in a state that puts women’s health at the forefront.”
Polis’ order directs state agencies to decline requests for arresting, surrendering or extraditing anyone who is criminally charged related to receiving, providing or assisting with reproductive care “unless the acts forming the basis of the prosecution of the crime charged would also constitute a criminal offense under Colorado law.”
He also ordered that state agencies not to provide, without a court order, information or data about patients, including medical records, to states seeking criminal or civil liabilities against people who get reproductive care that’s legal in Colorado. Instead, he said they should work together to protect patients.
It makes sense to Silverstein that the governor would not be interested in prosecuting or aiding in prosecuting people for actions that are not illegal in Colorado, and while a “headline-seeking” attorney may decide to indict someone in another state, Silverstein doesn’t believe they have a “legal leg to stand on.”
In addition to not complying with these types of investigations, Polis’ executive order stated that Colorado is already facing a worker shortage, and “disqualifying people because they were prosecuted for taking actions in other states that are fully legal under Colorado law would hurt our economy and our state.” Anyone who gets an abortion and is charged for it or any provider who gets in trouble for providing an abortion because a certain state banned it won’t be penalized for those actions in Colorado.
Reproductive rights advocates and medical groups were quick to applaud the governor for his order on Wednesday.
“Colorado Nurses Association supports the governor’s efforts to affirm women’s independent and autonomous decision making in access to all reproductive care, including abortion. We also support efforts to protect the licensees who provide these essential services,” the group said in a statement.