Pregnancy can lead to great joy or difficult choices for a woman. Photo by NIAID, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=82983820

In Brief: Proposition 115 would prohibit all abortions in Colorado occurring 22 weeks or later after a physician’s determination of the date of conception, with the exceptions of when a physician determines the life of the pregnant woman is in danger, or if there are life-threatening health risks. The measure does NOT include exceptions for rape, incest, or diagnoses of fetal abnormality.

Under Prop 115, it would not legally be considered “abortion” if a procedure is to save the life of an embryo or fetus; remove a dead embryo or fetus due to miscarriage; or remove an ectopic pregnancy. Doctors performing an abortion after 22 weeks could be charged with a Class 1 misdemeanor, fined between $500 and $5,000, and could have their license suspended for at least three years. Prop 115 is statutory, not Constitutional.

Why or Why Not?: Proponents put Prop 115 on the ballot in part to “protect the lives of fetuses after 22 weeks,” in a supporter’s own words. More than 20 states have something similar to the law that would be on the books if Prop 115 passes – one state has a 20-week ban measured in time after the last menstrual period, 17 have a 22-week ban, and four have a 24-week ban. Proponents of Prop 115 also note it’s possible for a woman to choose delivering a fetus through caesarian section and attempt to save the fetus, rather than have an abortion.

Opponents say as a top-line point that Prop 115 would take away a woman’s right to make a very personal decision, which could include situations where it’s possible that the fetus would not survive, or might survive but not without abnormalities.

The vast majority of women who get abortions do so before 22 weeks. For example, the Centers for Disease Control and Prevention reported that about 1.3 percent of abortions were performed at or greater than 21 weeks of gestation in 2015. In general, abortions at a time after conception like 22 weeks tend to be costlier, more difficult, and more time-consuming than abortions in earlier stages of a pregnancy.

There are plenty of online sources available regarding abortion issues, but readers might find a Kaiser Family Foundation webpage titled “Abortions Later in Pregnancy” informative (KFF.org).

One key consideration around determining a date beyond the moment of conception for measures such as Prop 115 is fetal viability – whether the fetus can survive outside of the womb. The KFF web page notes that there are discrepancies that could influence the likelihood of viability based on factors such as fetal weight and sex, and medical interventions available. It says fetal viability at extremely preterm intervals after conception (for simplicity, in the early 20s of weeks) may be more possible now than previously accepted, especially in hospitals with “Level IV neonatal intensive care units.”

Again, readers may wish to consult other sources, but the American College of Obstetricians and Gynecologists has a webpage with information on extremely preterm birth, including the following paragraph:

“Medical advances have helped some preterm babies survive and overcome health challenges. However, the chances that a baby born extremely early will survive without disability are still small. With very rare exceptions, babies born before 23 weeks of pregnancy do not survive. Although survival rates increase for babies born between 23 weeks and 25 weeks of pregnancy, most survivors face serious, often lifelong disabilities. As gestational age increases, the outlook for preterm babies improves.”

Some of the discourse around Prop 115 and measures like it includes the phrase “late-term abortion,” which does not have a precise medical definition, but it’s often used in association with the age in weeks after conception. For perspective, the Kaiser Family Foundation page linked above notes that there is criticism within medical circles of using the phrase “late-term abortion” because it implies abortions are taking place after a pregnancy has reached “term” (37 weeks after conception), or “late term” (less than 41 weeks).

Prop 115 would be the fourth anti-abortion ballot measure Colorado voters have faced since 2008, but the first having to do with prohibiting abortion after a certain time past the date of conception. This measure would not create potential criminal charges against the woman, but it would call for doctors performing an abortion after 22 weeks to be charged with a Class 1 misdemeanor, assessed with fines, and their license would be suspended for at least three years.

Prop 115 Pro:

  • https://www.duedatetoolate.com/
  • There is a possibility that fetuses could survive at 22 weeks after conception, and medical advances may mean chances of survival have increased.
  • It is possible to deliver a live fetus by caesarian section and try to save its life, as opposed to performing an abortion.
  • Some people are opposed to all abortion.

Prop 115 Con:

  • https://voteno115.com/
  • The pregnant woman is who should have the right to make this difficult decision, in consultation with family members and medical professionals, not voters or the government.
  • Prop 115 does not include exceptions for rape, incest, or diagnoses of fetal abnormality.
  • Only a small percentage of abortions happen after 22 weeks, and the woman may make this choice for medically defensible reasons.
  • Women may already choose to attempt to deliver a fetus instead of having an abortion 22 weeks or more after conception, without the force of law determining this choice.
  • Saving the life of a fetus at 22 weeks requires extensive medical effort and expense, and there’s no guarantee of success or that there won’t be long-term abnormalities. Even premature babies born much older than 22 weeks after conception but before full term are at risk of not surviving or having difficulties.

Richard’s Take: Vote NO. While it may be an admirable goal to try to protect all fetuses, this measure simply goes too far by criminalizing and prohibiting a procedure that adults actually involved in the pregnancy or medical discussions might find to be the best possible course of action. Voters who don’t understand the situation should not be making this decision for a woman today or for women in Colorado’s future; the government should not be in the position of enforcing a prohibition on what might be a medically defensible procedure; and imposing penalties including suspension of license on the doctor is unjust.

With the recent controversy over what might happen with the ideological balance on the U.S. Supreme Court, Coloradans who support a woman’s right to choose should strongly consider protecting these rights at the state level by voting against Prop 115, because it’s tough to have any confidence that a Supreme Court with a new partisan balance wouldn’t rule against abortion rights in future cases.

And whether Prop 115 is part of an effort to chip away at all abortion rights or not, this is also a measure with flaws and problems that should not become law in Colorado.