Limits on abortion after 22 weeks are in a legal gray zone. The Supreme Court has said that states have the right to restrict abortion after a fetus reaches the point of viability, or possible survival, outside of the womb, and some studies now suggest that 22 weeks is the earliest this could happen. About 1 percent of abortions occur this late in pregnancy, many of those because of late diagnoses of fetal conditions or logistical barriers to obtaining an abortion.
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Recently, Democratic legislatures in New York and Virginia have pushed to expand access to abortion at later stages in pregnancy, leading to intense national debates. In the weeks since Justice Ruth Bader Ginsburg died, several Democratic officials have proposed new measures to expand abortion access and protection in their states, including New Jersey and Massachusetts. Meanwhile, southern states including Georgia and Alabama have passed intensive new restrictions on abortion in the past year and a half, including bans after a fetal heartbeat can be detected, as early as six weeks after conception.
Abortion-rights opponents in Colorado pushed a 22-week limit for a simple reason: They believed they could win. One of the campaigns behind the proposed ban, Due Date Too Late, stated on its website that Colorado voters have indicated in the past that they would not support a full abortion ban; this ballot measure was an attempt to create a “reasonable restriction.” This proposal “really was an attempt to take advantage of the past couple of years of extreme demonizing of abortion later in pregnancy,” Kelly Baden, the vice president of reproductive rights at the State Innovation Exchange, a progressive policy organization, told me. The ban’s organizers “were proven completely wrong, in such huge numbers.”
Colorado has recently undergone a massive political transformation. For many years, conservative activists strongly influenced the state’s elections: Colorado is home to the evangelical organization Focus on the Family and some of the most notable megachurches in the country. But rapid growth in the state’s urban areas has tilted its politics to the left. On Tuesday, the state went for former Vice President Joe Biden by a comfortable margin, and voters replaced its Republican senator, Cory Gardner, with former Governor John Hickenlooper, a Democrat. Although far-right conservatives still have political sway—Lauren Boebert, who has praised the conspiracy theory QAnon, just won a congressional seat to represent the state’s rural western region—Colorado is now definitively blue. “The shift feels permanent,” Baden said.
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Polling has long suggested that abortion-rights opponents are more likely to be explicitly motivated by their views on the procedure compared with abortion-rights supporters. But with abortion back at the center of the American political debate following the Senate confirmation of Supreme Court Justice Amy Coney Barrett, a former Notre Dame professor who has expressed skepticism of Roe v. Wade, that may no longer be true. Activists on both sides of this issue closely watched Colorado to see what its Democratic voters would do, and what future debates over 22-week bans might look like. On all counts, “Coloradans have sent a clear mandate in favor of sexual and reproductive health-care access,” Alexis McGill Johnson, the head of Planned Parenthood, said in a statement.