Anti-abortion ordinance introduced in Pueblo city council could test new state protections

Ordinance targeting incoming clinic would rely on long unenforced Comstock Law

By: - November 30, 2022 12:26 pm

Members of the Pueblo City Council are shown at their April 11, 2022 meeting in Pueblo Colorado. (Mike Sweeney, Special to Colorado Newsline)

The Pueblo City Council is considering an ordinance that, if passed, would make it more difficult for an incoming abortion provider to receive medication and supplies, but there is doubt it would hold up in court against Colorado’s new abortion access statute.

The proposed ordinance, introduced by first-term council member Regina Maestri, is a response to a new abortion provider coming into the city. The Clinics for Abortions and Reproductive Excellence location would be the only provider in the city and the only provider south of Colorado Springs along the Interstate 25 corridor.

Now, Maestri wants to make it illegal to send or receive abortion paraphernalia, including Federal Drug Administration approved medication, through the mail in Pueblo, as first reported by the Pueblo Chieftain.

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Council member passed the ordinance on first reading with a 4-3 vote during a Nov. 28 meeting and plans to have a work session, followed by a second reading with public comment on the ordinance, in the future. It is the first attempt in Colorado by a city council to pass anti-abortion regulations following the overturning of Roe v. Wade.

“We were getting a lot of contact as far as what we could do as council,” Maestri told Newsline, referring to constituent concerns over the incoming clinic. “At first, I didn’t think there was anything we could do. But then someone directed me to the Hobbs, New Mexico ordinance.”

The proposed Pueblo ordinance follows a near-identical playbook from over 50 other cities, including Hobbs, that have passed so-called “sanctuary cities for the unborn” ordinances, promoted by anti-abortion activist Mark Lee Dickson of Texas. Maestri said she contacted Dickson first. He was present in city council chambers during the Nov. 28 meeting.

“This is groundbreaking for Colorado,” Maestri said. “Coloradans don’t have to be subjected to legislation in every way, shape and form that they feel is negative to their community.”

Pueblo City Council member Regina Maestri makes remarks during Council’s April 11, 2022 meeting. (Mike Sweeney, Special to Colorado Newsline)

The proposed ordinance relies on the enforcement of two federal laws — known as Comstock Laws — that declare “every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use” is “nonmailable” and prohibit “any express company or other common carrier or interactive computer service for carriage in interstate or foreign commerce … any drug, medicine, article, or thing designed, adapted, or intended for producing abortion.”

Those two federal laws, however, only apply to illegal items; Medical equipment and abortion medication like mifepristone are legal. Additionally, those laws have not been enforced for decades, experts say.

“Since abortion is legal and the FDA has approved distribution of mifepristone as safe and effective, including by mail, these are lawful activities and items, thus the law, as interpreted by the courts, doesn’t apply. Even now that some states have made abortion illegal, the pills still are legal under federal law,” David Cohen, a professor of constitutional law at Drexel University, told the libertarian magazine Reason in June. He referred those comments to Newsline.

An all-male city council in Hobbs recently passed an ordinance that uses a similar legal argument to the one brought forward in Pueblo. Clovis, another city in eastern New Mexico, voted on Nov. 7 to table their similar anti-abortion ordinance. That city council is voting to potentially un-table it during its first December meeting. Neither Clovis nor Hobbs have abortion clinics within their city limits.

Following the implementation of a restrictive abortion ban in Texas last year, more pregnant people have traveled to New Mexico and Colorado to receive abortions.

‘State law takes precedence’

The Pueblo ordinance, as written, would rely on people, rather than the city itself, to bring civil cases against people or entities that violate the federal mail law, which is different from how the Hobbs or Clovis ordinances are written. Maestri said that the writers of the ordinance were aware of Colorado’s Reproductive Health Equity Act and wrote language specifically to “supersede” it.

The Colorado state legislature passed RHEA this year to guarantee abortion access in the state. That law states that a public entity, such as the City of Pueblo, shall not “deny, restrict, interfere with or discriminate against an individual’s fundamental right … to have an abortion.”

The Pueblo ordinance’s private right-to-action clause, similar to the mechanism in Texas’s Senate Bill 8 that lets citizens enforce the law through litigation, attempts to sidestep RHEA.

Cohen expressed doubt, however, that the ordinance could actually be effective.

“Colorado cities cannot violate state law, and the state of Colorado’s Reproductive Health Equity Act protects the right to abortion. Relying on a long-dormant federal law that no one has thought enforceable for almost a century doesn’t change this fact. State law takes precedence over directly conflicting local law,” Cohen told Newsline.

Pueblo City Council member Sarah Martinez makes remarks during Council’s April 11, 2022 meeting. (Mike Sweeney, Special to Colorado Newsline)

Pueblo city council member Sarah Martinez was one of three members to vote against the ordinance’s first reading.

“I don’t understand how this is a city issue. It’s a matter of statewide concern. We’ve learned that abortion access is protected by the Reproductive Health Equity Act at the state level, which means that municipalities like ours legally cannot supercede the legislation. So why are we spending time on this when we have so many other citywide concerns?” she said during the Nov. 28 meeting.

Lawrence Pacheco, a spokesperson for Attorney General Phil Weiser, said the office did not have further comment on the proposed ordinance while Pueblo City Council considers it.

“Attorney General Phil Weiser is committed to defending the Reproductive Health Equity Act and challenging any local ordinance that violates the law. Our office is monitoring developments regarding the proposed ordinance in Pueblo,” he wrote in an email.

In Colorado, voters have repeatedly rejected anti-abortion ballot measures, most recently in 2020. Pueblo County voters Proposition 115 in that year with 52% of people voting against it.

Editor’s note: This story was updated on Dec. 13 at 12:40 p.m. that the name of the Pueblo abortion clinic is Clinics for Abortion and Reproductive Excellence.

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Sara Wilson
Sara Wilson

Sara Wilson covers state government, Colorado's congressional delegation, energy and other stories for Newsline. She formerly was a reporter for The Pueblo Chieftain, where she covered politics and government in southern Colorado. Wilson earned a master's degree in journalism from Northwestern University, and as a student she reported on Congress and other federal beats in Washington, D.C.

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