Litigation Update: Bella Health and Wellness v. Weiser

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Chayila Kleist:  Hello, and welcome to this Federalist Society webinar call. Today, December 13, 2023, we’re delighted to host a “Litigation Update” on Bella Health and Wellness v. Weiser—the case concerning a Colorado faith-based healthcare provider and a recent Colorado law related to the prescription of progesterone.

 

      My name is Chayila Kleist, and I’m an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s program, as The Federalist Society takes no position on particular legal or public policy issues. Now, in the interest of time, I’ll keep my introductions of our guests today brief, which might be to do them a disservice—but I’ll do my best. But I know that it is an important discussion, so we’ll try to get to that as quickly as possible. However, if you’d like to know more about either of our guests, you can access their impressive full bios at fedsoc.org.

 

      Today, we are fortunate to have with us Professor Mark Rienzi, who is President of the Becket Fund for Religious Liberty. Professor Rienzi joined the Becket team in 2011, and he splits his time as an Associate Professor at the Catholic University of America, Columbus School of Law, and is a visiting professor at Harvard Law School. He teaches constitutional law, religious liberty, torts, and evidence, and his academic writing, which focuses on the First and Fourteenth Amendments, has appeared in a variety of prestigious journals, including the Harvard Law Review.

 

      Additionally, he has broad experience litigating First Amendment and religious -- excuse me -- First Amendment religious exercise and free speech cases, and he has represented winning parties in a variety of Supreme Court cases, including Hobby Lobby, Little Sisters, Wheaton College, and Holt. Prior to joining Becket, Professor Rienzi served as Counsel at the Litigation Department in the Intellectual Property Litigation Practice Group of WilmerHale LLP. His practice focused on complex civil and appellate litigation, with a particular emphasis on intellectual property and First Amendment issues.

 

      Also joining us today as our moderator for the discussion is Ms. Amanda Salz, who is an Associate of Morgan, Lewis, and Bockius LLP, where she represents clients in a variety of litigation matters. Before joining Morgan Lewis, she worked on civil and criminal trials and appeals as a law clerk for Judge Andrew Oldham of the U.S. Court of Appeals for the Sixth Circuit and Judge Reed O’Connor of the U.S. District Court of the Northern District of Texas. While in law school, Ms. Salz interned at the Office of the Solicitor General of Texas and at the Becket Fund for Religious Liberty, and I will leave it there.

 

      As a last note, throughout the panel, if you have any questions, please submit them via the Question-and-Answer feature found at the bottom of your Zoom screens so they will be accessible when we get to that portion of today’s webinar. With that, thank you all for joining us today. Ms. Salz, the floor is yours.

 

Amanda Salz:  Thanks so much for that introduction, Chayila. And Mark, thank you for being here with us today to discuss a win for Becket, and particularly for your clients, in what appears to be a pretty significant case on abortion-related state legislation post Dobbs. I have plenty of questions to get into, and I’m sure that our audience will have some for the Q&A portion as well, but could you kick this off by just giving us a general overview of the Bella Health v. Weiser litigation pending in the District of Colorado?

 

Prof. Mark Rienzi:  Sure, and thanks for having me, and thanks for being here, Amanda, and thanks for tuning in, everybody. So this is a case about a medical procedure, often called abortion pill reversal—or what Colorado calls it: medication abortion reversal. And it’s essentially when somebody has started to take the abortion pill regimen but then changes their mind, and doctors and nurses try to give that woman some help. Right?

 

      So the abortion pill regimen is actually -- it’s actually a two-pill regimen that you take 24 - 48 hours apart. And the first pill is called mifepristone, and that’s the one that—just this morning, actually—the Supreme Court granted cert on some other litigation about that pill. And mifepristone is a drug that interferes with the pregnant woman’s natural hormone called progesterone. And mifepristone -- essentially, it begins to induce a miscarriage by interfering with progesterone, which is a hormone that’s necessary to maintain pregnancy.

 

      The Bella Health case arises because, after Dobbs, the legislature in Colorado passed a handful of very pro-abortion laws, but one of them was essentially trying to stop pro-life healthcare providers from providing a service called abortion pill reversal. And the idea behind abortion pill reversal is very simple. Mifepristone, the first abortion -- the first part of the abortion pill, causes a miscarriage by interfering with the body’s natural progesterone. And some pro-life doctors and nurses figured out that, “Well, if you’ve interfered with your natural progesterone but then you change your mind, maybe, if we give you some extra progesterone, we can help you out.” And it turns out there are a lot of good reasons to believe that that works. There are a lot of actual real, live human beings walking around the planet now because they’ve been helped in this way, and their moms were helped in this way.

 

      But Colorado sought to outlaw that practice of giving women progesterone in that context. And you can give -- and, actually, doctors do give pregnant women progesterone all the time. There are easily, probably, millions of women in America who are pregnant and taking progesterone as we speak. It’s super common. It’s been done for decades. It’s used to prevent miscarriages for lots of other reasons. But Colorado sought to make it illegal in this one context—if somebody has changed their mind after taking the abortion pill.

 

Amanda Salz:  And so, who are the plaintiffs in this case, Bella Heath and some -- I mean, individual plaintiffs -- who are your clients?

 

Prof. Mark Rienzi:  Yeah. Bella Health is a Catholic -- it’s a Catholic healthcare practice. It’s a faith-based, life-affirming healthcare practice. It started out just as an OB-GYN office, but it’s actually been wildly popular in Denver, and it’s expanded quite a bit, so now it’s a full-service family practice. And the doctors and nurses at Bella think that if a woman comes in and says, “I have this drug in my system, but I actually really want to keep the baby. I’ve changed my mind,” they feel like they’ve actually got a religious obligation to not just simply send her away but to actually give her the help that they know they can give her and that they know works, which is giving her progesterone.

 

      And so, Colorado sought to make it illegal and unprofessional conduct to offer women progesterone in that one context and only that one context. They tried to make it illegal to even tell people that progesterone would work in this way and could be used in this way. And so, the folks at Bella, when this law passed, felt the need to file a lawsuit and say, “Look. If somebody comes into my office and needs that help, I need to be able to help them. It’s a religious exercise for me. It involves my First Amendment rights, it involves my patient’s First Amendment rights to receive information,” and so forth. And so they filed suit back in April, when this law was first enacted. 

 

Amanda Salz:  And so, if SB 23-190 were to be able to be enforced—so, say we didn’t’ have this injunction—what would Bella Health and these physicians be risking by violating the current law?

 

Prof. Mark Rienzi:  Yeah. Thankfully, they haven’t really had to cross that bridge because we’ve gotten protection at every turn. But if the law took effect, then for a nurse or doctor to help a woman in this circumstance, you’d basically have to risk your license. You’d have to be doing something that the state has declared to be unprofessional conduct. And I should say Colorado’s a real outlier here. It’s the only one of 50 states to outlaw this practice. You can do this in New York and California. You can do this all across the country. I think you can do it all around the world. But Colorado, in, their post-Dobbs fits of passion, felt the need to do something to show how much they -- the legislature really loved abortion. And ironically, what they did was this pretty severely anti-choice, anti-woman move of saying, “Even if she’s decided she’d like to keep her baby, it’s illegal to provide help.”

 

Amanda Salz:  Yeah. And I think that’s a very interesting point that Colorado is an outlier. It’s not to say that other states that may be inclined to pass more pro-choice legislation, they’re not passing laws like this. So very interesting how extreme this law is.

 

      So you filed the original complaint in April of this year. What has happened since then?

 

Prof. Mark Rienzi:  Yeah. So Colorado passed this law in April, and, actually, our clients at Bella, the very afternoon the law was passed, one woman came into their practice saying, “I took the abortion pill, but I want to keep my baby. Can you help me?” And so, literally, within the couple hours before this law passed, Bella prescribed progesterone and started treating this woman. And so, then the law passed that afternoon, and Bella immediately -- we had to immediately move for a temporary restraining order because either we’d have to obey the law and cut the woman’s treatment off or we’d have to risk our licenses to keep treating the woman.

 

      That night -- it was late on a Friday night. It was probably early Saturday morning by the time the opinion came out, but the judge issued a temporary restraining order overnight—that very first night—that allowed us to keep treating the patient. And one of the lovely things about this case is time goes on and some of the patients who we were treating that week have now given birth to beautiful babies because the treatment has helped them, and they’ve been able to see their pregnancies through. So that’s how it started. It kind of started out with a bang, with a temporary restraining order.

 

      Immediately after that, when we showed up for the preliminary injunction hearing a couple weeks later in April, the state was backpedaling. They were saying, “Well, we’re actually not really going to enforce this right now. We’re going to wait and let the nursing board and the medical board and the pharmacy board enact rules about it, and we don’t really know what they’re going to do”—even though the legislature said it’s unprofessional conduct—"so we won’t enforce this against anybody until those rules come out.”

 

      And based on those promises from the state back in April, the judge denied us a preliminary injunction at the time but basically said, “I’m doing this in reliance on the state’s promises that they’re not going to prosecute anybody and that they’re not going to treat it as a violation of the law over these months.” And so, from April to October, Bella was able to freely provide this service. They have done it for many women, and they’ve got women expecting babies out of that time period because they’ve helped them keep their babies.

 

      But then, in October, the medical, nursing, and pharmacy boards enacted their rules; they left the statute in place. They said, “We’re going to judge some of this stuff on a case-by-case basis.” But they basically left it as unprofessional conduct according to the legislature, and that’s why we had to be back in court for the order that -- the preliminary injunction order that the judge issued a few weeks ago. 

 

Amanda Salz:  Got it. So then you filed an amended complaint, presumably, informing the court about these regulations, and then filed another motion for preliminary injunction. Correct?

 

Prof. Mark Rienzi:  Yeah. We filed another motion for preliminary injunction, and we laid out all the new changes and wrinkles in the rules where the government actors are leaving themselves all kinds of discretion to make case-by-case judgments about it, all the ways in which they don’t regulate other comparable conduct, and so forth. We put that in front of the court, and we had a hearing in mid-October, and the judge gave us a preliminary injunction shortly thereafter.

 

Amanda Salz:  What were your primary arguments in the motion for a preliminary injunction and that you discussed during the hearing?

 

Prof. Mark Rienzi:  Yeah. The primary argument was religious liberty. This is a religious healthcare clinic, and it is a burden on their religion to tell them, “We’ll take away your license if you try to help these women in need.” The human element is—just to state what’s probably obvious, but just to say it -- the human element is really, really important to our clients. They sit with these women. They cry with them on the couch. They talk to them about their situation. They help them.

 

      For some people, they take the pill, and then they just change their minds and say, “Oh no. What did I do? Can somebody help me?” Sadly, for some people, they are forced to take the pill. There are stories of people having it forced into their body by a boyfriend or a parent. There are situations where people get tricked into taking the pill because the boyfriend or somebody slips it into their smoothie. There are plenty of situations where people are just strongly pressured by parents or a boyfriend or somebody like that. So a lot of these people didn’t really make all that willing choice to take the pill. But whatever the reason, my clients feel a religious obligation to help them. In other words, my clients can’t simply say to that woman, “Sorry. Nothing I can do for you. Go home and wait for a dead baby,” which is what the state says they should say.

 

      And so, the argument we made is that it violates the First Amendment Free Exercise Clause. It also violates the Free Speech Clause. It violates the rights of our patients under the First Amendment to receive information, under the Fourteenth Amendment to make choices about their own medical care. But really, Free Exercise Clause was the lead argument and the one that won.

 

      And what we basically said is, “Look. There’s no doubt Colorado is burdening the religious exercise of our clients.” And that was never really contested. Colorado didn’t really dispute that our clients have sincere religious beliefs, that Colorado has made acting on those sincere religious beliefs illegal, and that they were going to punish them quite severely if they did it. So there was no doubt that there was a serious burden on religious exercise. 

 

      And so, the fight really came down to, “Well, is this a neutral and generally applicable law, such that it gets treated with lower rational basis type scrutiny under Smith, or is this a law that is not neutral and not generally applicable in some way and therefore triggers strict scrutiny?” And we argued and the court found that the law wasn’t neutral or generally applicable.   

 

      And just to rattle through a couple of reasons for that: it’s not neutral in that it -- if you look at the legislative history, it is abundantly clear the legislature was targeting religious actors with these laws. They repeatedly say that only the religious people do this abortion pill reversal stuff. And they say, “There’s as many as fifty of these religious clinics who are trying to help -- trying to tell people not to have their babies, and that abortion is” -- I’m sorry -- “telling them to have their babies and that abortion is not a great choice for them.” So the legislative history, as much as in Masterpiece or Lukumi or those other well-known cases -- the legislative history put a big shining spotlight on -- the legislature is targeting religious people and a religious practice that it doesn’t like.

 

      The court also found the law is not generally applicable, relying on supposedly narrow cases like Fulton and Tandon and Diocese of Brooklyn. And that’s one -- I find it enjoyable -- irony of this case. The court is applying -- and other courts have done this, too. The Ninth Circuit did it recently, too, in an en banc case -- but a whole string of recent cases that critics have said, “Oh, well, Masterpiece is really narrow, and Fulton is really narrow, and the COVID cases don’t really do any work.” You find when you actually litigate under those cases, they do an awful lot of work. And the en banc Ninth Circuit just found that in the Fellowship of Christian Athletes case, and this -- our judge in Denver did the same thing. So under Fulton, for example, the Court found, “Look. The boards are leaving themselves all sorts of case-by-case discretion to decide whether they want to enforce this rule or not, and that’s not a generally applicable law.”

 

      And then the judge compared it to the COVID cases—Diocese of Brooklyn and Agudath Israel and Tandon—and said, “Well, there are other analogous things that you allow.” So, for example, the government’s not trying to regulate any off-label use of progesterone whatsoever. In other words, anybody can take progesterone for any reason without running afoul of this rule unless it’s for a woman who took the abortion pill first, and then it’s unprofessional conduct. Well, if taking progesterone were dangerous, they’d actually regulate it in lots of places, but they don’t. They don’t regulate it any place. And they said, “Well, we’re trying to regulate the use of drugs that haven’t gone through full FDA approval clinical trials.”

 

      Well, there are actually tons of drugs that doctors prescribe all the time that haven’t done that, particularly for pregnant women because they don’t often do full clinical trials on anything for pregnant women because there are ethical reasons not to do that. But it turns out that the state was regulating one, and only one, situation in which that happened, and that’s if you tried to help one of these women save her baby after she’s taken the abortion pill but really wants to save the baby.

 

      So the judge looked at all that -- those were our arguments. And the judge looked at those and said, “Yeah. There’s several different ways that this law looks like it’s not neutral, and it’s not generally applicable.” And for that reason, the law would only be permissible if it could withstand strict scrutiny. In other words -- that doesn’t mean we automatically win the case. That means that the government’s got a burden. They have to show they’ve got a compelling government interest, and they’ve got to show they’ve used the least restrictive means to protect that interest.

 

      But a funny thing happened here, which is Colorado’s had this law on the books for seven or so months now, and they had two different times come into court. But the one thing they didn’t even try to do is argue that they’ve got a compelling government interest in outlawing this use of progesterone. And I think they knew that they just couldn’t do that with a straight face. Of course, they don’t have a compelling interest. Forty-nine other states allow this. Colorado allowed it until five minutes ago. There’s no evidence—this is another thing that came out -- there’s no evidence of a single woman ever harmed by taking progesterone in this way. It’s not, Colorado came in and said, “But look at all the people who’ve been hurt.” They didn’t do that because no one has found any of those people because it’s not true.

 

      So Colorado couldn’t really argue that there was a compelling interest in punishing the plaintiffs here. And so the judge had a very easy time at that part of the opinion, saying, “Well, of course, you don’t pass strict scrutiny. You haven’t even tried.” And given their way of regulating, I don’t think it’s a surprise that they didn’t try because I think they know it couldn’t possibly pass that test.

 

Amanda Salz:  Yeah. It’s interesting, too, because, to your point, they’re not making that argument during litigation. But the statute itself—the bill itself—says that medication abortion reversal is a dangerous and deceptive practice that is not supported by science or clinical standards. And so, what are those scientific or clinical standards that the government cites, physically, in the bill?

 

Prof. Mark Rienzi:  Yeah. You’re right. That is a big chunk of their argument, and it’s one of those assertions that is worth looking into if you have five minutes because you don’t need to be a scientist to see that they don’t have very good science for that claim. So I’ll tell you that their main argument is, “Well, this is not an FDA-approved indication of progesterone.” That’s true. In other words, no one’s put it through full clinical trials. And they say, “Well, you haven’t run a randomized placebo-controlled test to prove that this works.” That’s also true, with one exception, which I’ll get to.

 

      The reason it’s true is that the pro-life doctors who do this don’t ever think it would be ethical to give a woman who’s in front of you crying, saying, “Please help me save my baby,” say, “Okay. Here. Have a placebo. I just want to do a test.” Right? It’s not ethical to do that, and the pro-lifers won’t do it. But there’s plenty of strong scientific support to show that this works, and just to rattle off a handful of them, there’s the basic biology about how mifepristone and progesterone work. 

 

      Mifepristone works by blocking your body’s normal progesterone. Giving you some extra progesterone is sort of a natural way that doctors would think you can deal with something that interferes with your body’s natural hormone. There are animal studies that show it. There’s one study with pregnant rats where -- when they gave progesterone after the abortion pill, 100 percent of them continued their pregnancies. Right? When they didn’t, only 30 percent of them continued their pregnancies. And there are several of those different animal studies. There are miscarriage studies showing that it’s very useful for, at least, some women who’ve had recurrent miscarriages. Being on progesterone helps them not have a miscarriage. It helps support the baby. Progesterone is used for women undergoing in vitro fertilization, for example. They’re often on progesterone all through the first trimester.

 

      So there are a lot of these scientific data points that suggest it works. And then there’s a lot of case studies of doctors who do it for some set of their patients, which is obviously not big enough to be like a full-blown clinical trial. But there are lots of case series reports showing doctors with 50/60 something percent save rates—that if you give women progesterone in the first day or two after taking mifepristone, you can get them to save their babies.   

 

      The alleged science on the other side amounts to one very short and discontinued study. So there’s one study that began to try to do a clinical trial, and it was done by somebody who is a paid spokesperson for mifepristone. So it may clue you in at the outset that the test may not have been designed to necessarily support abortion pill reversal. But what he did was he started with women who wanted to have surgical abortions—and this is an abortion-providing doctor, so to his mind, there’s nothing immoral about any of this or unethical about any of this. And he said, “Look. Let me enroll women who are going to have a surgical abortion anyway, but let me give them the abortion pill first, mifepristone, and then I’ll give some of them progesterone and some of them a placebo, and we’ll see what happens.”

 

      Well, that doctor discontinued the study because three of the women went to the emergency room with heavy bleeding after taking the mifepristone, and two of those three women needed treatment in the emergency room. Ironically, though, the two women who needed treatment were on the placebo, meaning that the only drug that was in their system was not progesterone; it was mifepristone. And that actually makes sense because one of the things mifepristone is supposed to make a pregnant woman do is bleed and have a miscarriage and get rid of the baby. Right? That’s what mifepristone is trying to do. But the doctor called off the study at that point and said, “Well, it’s too dangerous to do this study. We’ve got too many people bleeding,” even though the only ones who needed any treatment were on the placebo and not on progesterone.

 

      If you actually look at the data from the study, there were ten people who actually got going in the study and took the mifepristone. Five of them took progesterone; five of them took a placebo. In the placebo group, two out of five had a continuing pregnancy. In the progesterone group, four out of five had a continuing pregnancy. So even in that study, it seems to show that progesterone seems like it works, and there are lots of doctors and nurses who’ve had that experience. My clients in Bella have had that experience. There are plenty of real live human beings walking around the planet because their moms have come in in this circumstance and gotten progesterone, again, including some who’ve actually happened during this case under the original temporary restraining order. So those are the reasons. The argument is that, “Well, maybe it’s dangerous to women,” is the claim based on that one study. But, of course, that one study shows the only thing that’s sending people to the hospital needing treatment, in fact, seems like it’s mifepristone.

 

      And I should also say that the treatment that the state says is the right treatment is just, “Don’t take the -- just leave the mifepristone in your body; go home and wait for a dead baby.” And that’s really no different from what happened to these women in this other study, and some of them do bleed pretty heavily because mifepristone often makes people bleed. And so, that’s an awfully thin read on which the state is going, and the science just doesn’t hold up. You don’t have to be a scientist to look at that and realize it’s pretty politicized and wrong. You have to be a -- you have to have -- a good high school education will do it for you.   

 

Amanda Salz:  Yeah. Well, and so, building on the point about it not really being a political issue, another part of the bill that I find striking is that it refers to crisis pregnancy centers as anti-abortion centers, and says, “They are the ground-level presence of a well-coordinated anti-choice movement.” So there’s this anti-choice point that comes up in the bill’s text itself, but it seems as though the only people who are being treated by the positions in a case like this are women who have chosen to try to carry their babies to term after taking the first part of the pill. So has the government at all addressed this choice argument, the fact that the women here have actually chosen life?

 

Prof. Mark Rienzi:  Yeah. It’s a great point, and no, they try to sidestep it. And look, to be clear, I actually don’t think most pro-choice people favor a law like this. I think most decent pro-choice people would say, “Okay. Fine. But if the woman’s changed her mind and doesn’t want the baby to die and wants to continue the pregnancy as a matter of choice and autonomy, sure, she can take the same pill that any other pregnant woman at risk of miscarriage can take. Why not?”

 

      And I should also say there’s really no medical dispute about whether progesterone itself is dangerous. It’s a natural hormone. It’s been prescribed to pregnant women for a zillion different reasons over the last 50/60 years. Nobody in the case—the state, the nursing board, the medical board -- nobody actually argues that progesterone itself is dangerous. So, yeah, I don’t think any reasonable pro-choice people think we should deprive women of this treatment, but I do think the actual law they passed is horribly anti-choice.

 

      In other words, if you really believe in reproductive autonomy, if you really believe “my body, my choice,” then surely, if a woman says, “I’d like to stop the abortion now,” we should all be able to agree she’d be allowed to stop it, and she should be allowed to get medical help, particularly something that’s safe and, at worst, harmless, but in fact, seems to have some good efficacy to it. I think most decent people would think you could do that. 

 

      One interesting fact is Colorado hasn’t bothered to appeal our preliminary injunction. You would think if they really believe what they’re saying about alleged dangers and anything else, they, at least, would try an appeal of the preliminary injunction to the Tenth Circuit, but they didn’t do that. And I think they didn’t do it because they just know they’re wrong.

 

Amanda Salz:  And so the injunction’s still in effect. Presumably, media and other organizations have commented on the very strongly written opinion from the district court. What has the response been on the right/left, generally? What have you heard?

 

Prof. Mark Rienzi:  Yeah. There’s certainly been response. It’s gotten coverage in the media. It’s still a trial court case—in part because they didn’t appeal it—but I think the reaction is kind of typical, what you’d expect. You’ll occasionally see somebody from a pro-abortion group saying this is terrible, but I get the idea that the state doesn’t really want to talk about this case a whole lot because I think they know they’ve got a bad law here, they were doing something wrong, and they’re going to lose. And again, I don’t think the pro-abortion side looks very good, saying, “We don’t want to even let a woman take a safe hormone like progesterone if she’s changed her mind. We think once she’s made that decision, it’s a point of no return.” That’s a bizarre position to take, and I don’t hear the other side saying it out loud.

 

Amanda Salz:  Yeah. Have you seen any change in the amount of women who are coming into organizations like Bella Health, seeking these services as a result of the publicity of this case?

 

Prof. Mark Rienzi:  Yeah. Actually, there’s a couple things—and I might cheat because I glanced at one of the questions. There’s a couple of things that I put in the category of like, God works in mysterious ways, and you can look at it, and that’s, at least, how I chalk it up. So one, is that there are some women who have come into Bella and who say -- who, when you asked, “How’d you find out about it?” “Oh, we found out about it because of Colorado’s law and the lawsuit.”

 

      In other words, there are women who previously had no idea that if they took the abortion pill, there’s something that they could do to change their mind. But when they go online to find out about it, the controversy caused by this law from Colorado actually clues them in that, actually, there’s some help available. And some of them -- some of them come knocking on the door to get that help and are successfully moving forward with healthy pregnancies. I chalk that up as God can make good things happen out of bad things, like a bad Colorado law.

 

      Somebody put in the Q&A—if I’m just -- if I could just break through for just a second because I saw it. Somebody wrote the following: “The facts seem highly coincidental that the patient would go to the clinic the morning the law was going to be enacted. Was this planned so you could have a stronger case for an injunction? Nothing illegal about it, but it seemed similar to the plaintiffs involved in Masterpiece. By the way, progesterone is the reason I have identical twins. Thank you, and good luck.”

 

      So I wish I was a smart enough litigator to come up with that move, but, no, I -- that’s -- again, I put it in -- I put it as a little bit of divine intervention and help that the woman walked in that afternoon. But she really did call up and show up to the office a few hours before the law passed, asking for help. So I agree with you, it’s tailor made. It really drives home the urgency of the situation when you can say, “Your honor, I have a patient I just started treating. Are you really going to let them make me stop?” But that’s just really how it happened. We really had somebody knock on the door and ask for the help that very morning—or that very early afternoon—and she needed the help, and so that’s just the way it happened.

 

Amanda Salz: Yeah. That’s pretty incredible. Well, I actually think this is a good time to get into some of the audience Q&A, but we’ll turn back to just next steps later in the conversation. But just as a reminder, if anyone has questions, feel free to drop them in the Q&A function, and we’ll get to those as they come in.

 

      So the first one is, “How often, roughly, does the expectant mother who has begun to terminate her pregnancy change her mind?” And then it says, “A percentage would be fine, an actual estimated number, or whatever is easiest. And how quickly, following the first dose of mifepristone, must the progesterone be given in order to save the pregnancy?”

 

Prof. Mark Rienzi:  Yeah. Short answer is I don’t know, and I don’t think anybody really knows the percentage. I don’t think it’s super high, but we do know that there are -- it happens a significant enough number of times that Colorado sought to outlaw it and that my clients have built a practice doing this for women who ask for it. And if you Google it or if you pull our complaint from the case—which is on our website, becketlaw.org—we’ve got citations to a bunch of places where somebody slips it into a smoothie or forces it down somebody’s throat or otherwise forces somebody to take it. So the short answer is, it’s probably not the most common thing that ever happens. It’s not every day, but it’s -- it happens. It happens that my clients get people every few weeks—or a few people a month do come to them and ask for help. So it happens. I couldn’t really put a number on it, but it happens.

 

Amanda Salz:  All right. The next question is, “Are legislators going to get smarter about not making their anti-religious, pro-abortion biases so obvious? If so, will it be harder to win challenges to the laws they pass?

 

Prof. Mark Rienzi:  Yeah. What year was Masterpiece Cakeshop? Was that like 2017 or ‘18? I’d have to go back and look.

 

Amanda Salz:  I think it was a couple of years after, but I would also have to look.

 

Prof. Mark Rienzi:  Yeah. It might’ve been. They run together. But look, when Masterpiece Cakeshop came out, you could have asked the same question. Right? Are the politicians really going to keep being so open and obvious about their hatred of the religious people and how much they dislike the conservative religious guy? Or is this only a case that’s useful when the government says those things out loud? My response then and my response now are kind of the same. I actually think the saying it out loud is part of the game for them. They like to pound the table and say how the religious people are evil, awful, and wrong. If you’re the politician, that’s part of the payoff for you is saying those things.

 

      And so, the unfortunate reality is that governments will keep doing these things until the courts stop them, and I think they’re mostly going to keep saying the things out loud. This is actually their real view of the religious people and the pro-lifers, and from their point of view, it gets them votes, and it poses to the base. So certainly, at some point, I’m sure people do things like this, and they run a tighter ship, and they keep their mouths a little shut, or they don’t say the quiet part out loud. But very, very often in our practice, we see that the -- it’s kind of the same thing over and over again—the nasty stuff about the pro-lifers.

 

      Just to give you one funny aside, we’ve got a case in Maryland for Muslim and Christian parents who are fighting against the tried curriculum that the public school wants to impose on their three- and four-year-olds—to introduce them to gender ideology and all the rest when they’re three. And when the Muslim parents in Montgomery County, Maryland showed up to the school board meeting, the school board people actually accused them of being the same as the white supremacists.

 

      And it’s like the other side just has one playbook, and they will just do it over and over again, even when they’re speaking to non-white, immigrant Muslims. They’re like, “Well, you’re just like the white supremacists.” And I think the truth is that really just is the way that some segment of the other side thinks about religious people and conservative people and pro-life people and so forth. And I think you’re right that they may someday wise up and not say it out loud. But they seem to have an awfully difficult time not saying it out loud. I think they really believe it, and they can’t -- they kind of can’t keep it in. And that’s useful for litigation. All that said, we won on a lot of different grounds, so we’d have won just fine without it, too.  

 

Amanda Salz:  Well, I was going to ask—because mentioning Masterpiece and, obviously, this case -- Colorado is not being quiet about these things. I was going to say, is this happening all across the country? It sounds like it’s happening in Maryland, but are the state legislatures -- is this typical that they’re saying the quiet part out loud?

 

Prof. Mark Rienzi:  Yeah. I think it is. This was true in Fulton, for example. We had the Fulton case a few years ago at the Supreme Court, and Philly was every bit as nasty in the Fulton case as Colorado was in Masterpiece. So, yes, I think it’s common. I think it appeals to a certain segment of the far-left base to say things like that. I think the people saying it are true believers. I think they really believe that the pro-lifers hate women and that the pro-lifers are only trying to trick women, and they’re really evil people. I think they actually believe that, and they think that all the religious people are evil, awful, and wrong. So, yeah. We’re seeing it a lot -- in a lot of places.

 

      We’re also just seeing more active, hostile state and local government—really, at all levels of government. But the folks who think the religious people are wrong are eager to wield whatever power they have to silence them or to stop them, and so that’s bad. I wish that wasn’t what was going on in the world, but it’s good for suing them and making precedent, and we’ve been having a lot of success doing that, where they take these kind of terrible actions. 

 

Amanda Salz:  And then going back to your point you made earlier about how this is exclusive to Colorado right now, have other states considered laws like this and just not passed them or --?

 

Prof. Mark Rienzi:  I don’t know if others have -- I do think someone in New England has recently considered a law like this. California has a false claims lawsuit. They said it was false -- sort of false advertising or false commercial speech, I think. They’ve got a complaint against somebody. So it’s starting. This is clearly in the pro-abortion playbook right now -- is to go after abortion pill reversal. And I would just point out—for whatever it’s worth—it’s worth pausing to think about, “Gosh. What’s gotten so rotten and evil that this is in your playbook?” Right?

 

      If you really believe in autonomy for women, if you really believe in freedom of choice, you ought to be in favor of this. And if you don’t think this one works, you ought to be in favor of some other solution for the women who change their minds. It’s a little bit odd to go attack that group, but I think there’s such an aggressive anything-the pro-lifers-do-we-must-tear-down approach, that -- these things from the playbook -- I’d like to think that this lawsuit will help make clear that if they pass more of these laws, they’re just going to lose and set more good religious liberty precedent and that they’ll come to their senses. I don’t know if that’s true, but we’re going to try. 

 

Amanda Salz:  Yeah. And that may be why the state didn’t appeal, too. I don’t know if that is something that you all considered but–

 

[CROSSTALK]

 

Prof. Mark Rienzi:  Yeah. They may not have wanted to make [inaudible 37:12] appellate law after making [inaudible 37:13].

 

Amanda Salz:  Exactly. So turning to another listener question. Someone says, “Obviously, it’s a terrible law, and if prima facia constitutional violation -- and if a prima facia constitutional violation, unsustainable. Can you explain for a non-specialist how the existing precedence the doctors are prevented from practicing as opposed to implementing their religion by such a rule?”

 

Prof. Mark Rienzi:  Sure. So what the rule said is that if you help a woman in this way, if you give progesterone to help a woman who’s taken the abortion pill, that is unprofessional conduct, and under Colorado law, you can be fined and have your license taken away for engaging in unprofessional conduct. So Bella Health and the individuals who are plaintiffs in the case say, “It’s my religious exercise to help these women when they come into the office. I can’t lie to them and tell them there’s nothing I can do. I can’t send them home to wait for a dead baby. I have to actually give them the help that I know I can give them.”

 

      So that’s their exercise of religion while they’re practicing medicine. And Colorado would make that illegal by defining that action, and only that action, to be unprofessional conduct. Right? You give progesterone for any other reason to any other woman you want, it’s not, per se, unprofessional conduct, but for this one, it is. So Colorado would take what was the religious exercise and make it unprofessional conduct under your medical or nursing license. And that’s how it would interfere with the practice of medicine and the exercise of religion. 

 

      And could I say, this is -- this makes it an interesting and new kind of medical conscience case. If you think about the ones we’re most used to hearing about, those are things like nurse or doctor doesn’t want to perform the abortion or the sex-change operation—like, I’m a doctor, but I can’t do X. Well, this is the opposite of that. Right? It’s like, “I’m a doctor, and I’m morally obligated in this circumstance to help somebody. I can’t turn her away. I can’t say, ‘Go home and wait for a dead baby.’ I can’t lie to her and tell her, ‘Gosh, there’s nothing I can do,’ when I know there’s something I can do, and I’ve held the live babies at the end of it to prove that I could do something.” Right?

 

      So this is like the religious healthcare provider has an affirmative desire to provide a certain kind of healthcare and an affirmative desire, just not to lie and send a patient in need away, which, frankly, is a fairly barbaric thing to try to make them do. And they say, “Look. I just can’t do that.” And so that makes it a little bit of a different kind of conscience case but one that I think the law squarely protects as well.  

 

Amanda Salz:  Well, and to the point about how these physicians don’t want to lie to their patients, I think it’s interesting that the bill itself -- it’s titled something along the lines of “deceptive practices” or -- I’ve got it up here somewhere. Yeah. It refers to deceptive action. So what is the deceptive action that Colorado says it’s trying to prevent?

 

Prof. Mark Rienzi:  Yeah. They say that it’s deceptive to tell women that you might be able to help them with progesterone. So they say that telling women you could help them reverse the action of the abortion pill or interfere with the action of the abortion pill -- they say that’s deceptive and therefore illegal. And they also want to use the deceptive practices act to fine you at a clip of something like $20,000 and add if you say that.

 

      In other words, Colorado was super committed in this case to not letting anybody hear about the fact that you might be able to do this, and again, that’s the -- the court gave us an injunction on that as well: said that we’re allowed to tell people that. At best, for Colorado, it’s a disputed scientific thing. I don’t think a fair reading of the science is very disputable. But at best, there’s different doctors and nurses who have got different ideas about it. The idea that the government can make it illegal to even tell people is really preposterous and, I think, shows how bad and controlling their approach is. 

 

Amanda Salz:  And going back to the irony of this case actually getting the word out there. The attempt to stifle speech has actually allowed Bella Health and other organizations to let women know that this is an option for them if they would so choose.

 

Prof. Mark Rienzi:  Yeah. I strongly -- Yeah. I strongly suspect that there’s more women in Colorado now who’ve heard abortion pill reversal than ever were before they tried this law.

 

Amanda Salz:  Well, moving to another, lengthier question, someone says, “Can you expand on how the Colorado case ties into Rob Bonta’s persecution of Heartbeat International in California and the general prosecution of CPC’s for false advertising?” So give a little -- give a little bit of background on this, what this question’s asking, and then give an answer as well.

 

Prof. Mark Rienzi:  Sure. So this was what I was mentioning before that Colorado’s got a -- and, again, I don’t have it in front of me, and I’m not super familiar with it -- but they’ve got some sort of a false advertising or false claims type charge that they’ve brought against Heartbeat International and I think a few other pregnancy centers in California. And I think that is in line with some other prosecutions that we’re seeing elsewhere in the country.

 

      One of the things -- so if you look at the history of the fights going on here -- so if you think back to like -- there were the buffer zone laws for a long time trying to keep the pro-lifers from talking to women on the sidewalks. A lot of that went away with the McCullen case ten years ago. Some of it still lingers, and there’s some of these out there that still need to be changed.

 

      Then about—oh, I don’t know—the 2008/2009 time period, you started to see the sign-on-the-wall cases, where the move to undermine the pregnancy centers was to say, “Well, you could be pro-life, but we’re going to make you put a big sign on the wall that says the government thinks you ought to go see a real doctor or the government thinks you should call this number for your abortion. So there were a series of cases that was in California and Maryland and New York and Texas and a few other places, and that cycled through and ended with the NIFLA case at the Supreme Court where the Supreme Court said you can’t do that.

 

      It’s clear that the latest move is, “Well, let’s try to say that they’re engaging in false advertising, and let’s create special statutes that are false advertising just by the pro-life clinics, not by the pro-choicers. There’s a smattering of those. I’m not aware of places where the governments have been terribly successful. I could be wrong. It’s a big country. Maybe someone’s really engaged in false speech.

 

      For the most part, I look at these laws, and I think these laws are being passed precisely because no one’s actually falsely pretending to be a medical clinic who’s not, or no one’s actually engaging -- no one’s promising to give you an abortion and really not because if they did those things, they’d be easy to prosecute because that’s against other laws. And I’m sure Rob Bonta and other AGs would be delighted to bring those cases.

 

      The reason they have to bring these other sideshow cases, I think, is precisely that no one’s doing the alleged bad things that they’re claiming. So Bonta’s going after Heartbeat. Again, I do think in some other places it’s happening. To the extent they’re arguing that it’s false advertising to say that you can give somebody abortion pill reversal or that there are good reasons to believe progesterone would help, that’s just wrong, and truth is a defense. 

 

      And the science is actually really strong. There’s very strong reasons to believe that this works and there’s a lot of beautiful babies that I’ve seen pictures of who have been born after their moms have taken progesterone in this circumstance. So, eventually, I think all those prosecutions are going to die on the hill of actual lived experience and actual real live human beings who are out and about in the world because their moms took progesterone. At a certain point, you can’t keep that silent as long as they’d like to.  

 

Amanda Salz:  Well, another listener asks what you’re hoping to accomplish via discovery. So maybe not build on your point about all the babies who are being born—hopefully, there will be more statistics on that—but what, specifically, are you looking to accomplish in the discovery process?

 

Prof. Mark Rienzi:  The discovery process has not begun yet, and while I love all you people, and you’re very nice people, I can’t tell you now what we’ll be asking in our discovery request. You’ll have to wait until we issue them to the state of Colorado.

 

Amanda Salz:  Well, great. That makes perfect sense. What are the next steps in litigation?

 

Prof. Mark Rienzi:  So we just had a scheduling conference, and the discovery question is spot on. We are about to jump into discovery. So we’re going to do the discovery, depositions, experts, and so forth over the next eight or nine months, followed by summary judgment motions in the fall, and then either someone will get summary judgment—would suspect and hope and pray for us—or somebody won’t, and we’ll go to trial. My guess would be late ’24 or early 2025.

 

      Again, Colorado did not appeal our preliminary injunction win, which means that injunction is going to protect us and the women who seek our help all throughout that period. And it also means that that will be the law that the judge applies at the end of the case, too. And so, we feel like we’ve got a very, very strong argument that that’s the right answer, and the judge got it right, the state knows it, and so that that ought to stick through the whole case.

 

Amanda Salz:  Yep. And so you’ve already got a great standard that you’re working with. At this point, it’s just making sure the box [inaudible 46:14].

 

Prof. Mark Rienzi:  Yep.

 

Amanda Salz:  Well, the next question is, “If Colorado’s view is that the abortion pill could not be reversed by progesterone, could pro-lifers push for informed consent guidelines for RU-486, requiring doctors to tell women that the abortion pill is totally irreversible?” And then [inaudible 46:31] I agree that progesterone therapy works, but if Colorado wants to pretend it does not, then it should -- it’s shouldn’t be a barrier to obtaining the pill.” So do you have any response to that?

 

Prof. Mark Rienzi:  Yeah. Some states have tried that and lost, and I don’t have the list -- I don’t have the list with me, but I know a handful of states have tried to say that the abortion providers should have to, at least, tell women, “Hey. And if you change your mind, come back. We can give you progesterone if it’s” -- and, generally speaking, the doctors who do this think it’s got to be within the first 72 hours of taking mifepristone—you’ve got to give somebody the progesterone. Those cases that tried to force the abortion providers to speak and to say that this can happen, those cases have lost, to my knowledge.

 

      So we’re in a zone where, when the government tries to force the doctor to say one way or the other, the governments tend to lose. I think it’s important for women to know it because we’re seeing it in Colorado, and I assume women in Colorado are like women in other places, and there really is a real significant number of women who want this treatment. So I think it’s important for people to make it known to women that they’ve got this option. But I don’t think -- certainly, Colorado’s legislature in a million years would never go there, and the friendlier legislatures that have tried, so far, at least, I think, have lost in the trial courts.

 

Amanda Salz:  Okay. And this is a bit beyond the scope of this litigation and maybe something that you don’t want to opine on, but are there other types of laws that are -- legislatures are considering on this issue, or is it really just Colorado right now, and it’s just the stifling of speech and preventing physicians from performing and from informing their patients?

 

Prof. Mark Rienzi:  Yeah. So I think Colorado’s law is the worst. There are other places that have laws that, I think, are -- that target the pro-life pregnancy center movement. So they’ll be like, sort of, special false advertising laws that only apply to the pro-life pregnancy centers. We just had a win against one in New York, where New York passed a law, also in their post-Dobbs frenzy -- and I should say, the post-Dobbs frenzy -- the reason I think these things happen is that after Dobbs, if you’re a pro-abortion politician, you needed to run out and say how much you love abortion, and you’re going to do something about Dobbs.

 

      Well, if you’re in a place like Colorado or New York, it’s already really legal to have abortions, and you can’t re-legalize it. It’s already legal. So what are you going to do? So they end up passing these laws that, essentially, just lash out at the pro-lifers so that they can have something to pound the table and say, “I’ve responded to Dobbs with something strong.”

 

      In New York, that was a law that said, “Well, we just want to study all the pro-lifers, and so we’re going to have the Department of Health demand—and if they demand, they shall receive—all of your internal documents about the women you help and the training you provide and everything. So it was basically like a statute that said, “I’m going to go through your papers, and when I ask for them, you’ve got to provide them to me because we just want to study people like you. We think it’ll be interesting to find out what people like you do.” In a country with a First Amendment, much less a Fourth Amendment, that’s outrageous. Right? The government just doesn’t get to pick people and say, “I’d like to go through your papers now.” You need a warrant. You need some reason to believe they’ve done something wrong. It can’t just be, “I’d love to go through the political -- through the papers of my political opponent tomorrow.” But that’s the law New York passed.

 

      We sued about that law on behalf of the Sisters for Life in New York, and New York spent a year backpedaling and saying, “Well, maybe we’re not going to enforce it,” or, “We’re not really ready to enforce it,” or, “We’re not going to do anything yet.” So the case basically sat on hold for a year. But it ended with an order from a federal judge telling New York that they cannot ask the Sisters for their documents.

 

      So these types of attacks after Dobbs, I think, are getting more common because legislatures want to do something to show how aggressively pro-abortion they are, and sometimes that will include trying to punch the pro-lifers. But there’s good reasons to think that they’re all going to fail, that at every turn these laws are not really going to be upheld because they’re—almost in a comic book way—singling out the political opponent for punishment in a way that the Constitution just doesn't allow.   

 

Amanda Salz:  Have you seen any legislation from red states or even purple states that’s favorable after Dobbs?

 

Prof. Mark Rienzi:  I’m sure there has been, but I’m not super familiar with the details on it. I’m thinking, particularly, about the regulation of the pregnancy centers. I think, for the most part, in the red states, they’re not -- they’re just not -- what they’re doing is they’re not passing laws to go after them. But I’m not really sure of what on the other side of the ledger might be going.

 

Amanda Salz:  Yeah. I guess your clients wouldn’t really be trying to go after those laws or --

 

[CROSSTALK]

 

Prof. Mark Rienzi:  I would say those laws aren’t really going after my clients is the way I would put it.

 

Amanda Salz:  Yes. Yeah. That’s a better way to put it, but -- well, I don’t know if any of our listeners have any more questions. These have been great so far, but, Mark, do you have any concluding thoughts, either on the case, on the opinion, on this huge win that you got, or just next steps?

 

Prof. Mark Rienzi:  Yeah. Let me just point out that the judge’s opinion in this case relied on the Ninth Circuit’s en banc decision recently in the Fellowship of Christian Athletes case. And I think these two cases are great examples of how the recent free exercise wins—of which there have been many at the Supreme Court: ADF’s win in the Masterpiece case, our win in Fulton, the wins in the COVID cases and so forth -- a lot of critics or naysayers try to say, “Oh, well, that’s narrow. It’s not going to do a lot of work.” The truth is, those cases do significant work, and they help make clear that -- it’s not like under Smith—almost every law is neutral and generally applicable.

 

      In fact, it’s actually quite common that the government targets people they don’t like. Unfortunately, governments do that all the time. Right? It’s very often that they leave themselves leeway to grant exceptions because they like to leave themselves leeway. It’s very often that they favor the secular interests that they like. All the sins of those cases tend to be recurrent things that governments do, and that’s why good lawyering, using religious liberty cases, can take a lot of these things and turn them into wins for religious liberty. So I think that’s a notable thing about this case. It’s notable about the Ninth Circuit case, and it’s happening in other places, and it’s really good for the law.

 

Amanda Salz:  Great. We just got in a comment that says, “Excellent work, splendid presentation, bravo Professor Rienzi, and God bless, Becket.” So I think that is a great note to end on.

 

Prof. Mark Rienzi:  No objection from me. Thank you for listening, and thank you for the kind words.

 

Chayila Kleist:  Thank you both for joining us today. Professor Rienzi, Ms. Salz, we really appreciate you lending us your time and your expertise. Thank you also to our audience for joining and participating. We welcome listener feedback by email at [email protected]. And as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.