Editorial Note: The 1891 published a previous version of this article by author Lynn Noesner before the final opinion was published. We now publish this update.
As an appellate public defender, I am accustomed to loss. I am accustomed to fighting impossible battles and pushing sliding boulders up the hill. I am accustomed to the randomness of outcomes, stemming from the grey spectrums of the law. Nearly 15 years of this work has made me resilient and thick-skinned. But nothing could prepare me for Roe v. Wade’s demise.
As a logical matter, I knew Roe v. Wade had been on life-support for a while. I knew many states had been methodically whittling away at women’s reproductive rights for years, making access to abortion more and more limited. And yet, as an emotional matter, facing the draft of Dobbs v. Jackson’s Women’s Health Org was a loss that I could not fully accept. I volunteered to write a CWBA blog piece about the draft of Dobbs in early May shortly after Politico published it. But I kept stalling and procrastinating. What could I say about the 98 pages of female subservience and SNL fodder? How could I explain this to my daughter? It could not be real, could it? My denial was strong.
Now denial is no longer an option. What’s the next phase of grief? Rage? Yes, my fury is nearly consuming me. The Handmaid’s Tale is not supposed to be documentary. I spent the whole Fourth of July weekend with a bitter, acrid taste at the back of my mouth. It wasn’t the fireworks smoke. It was my anger at our highest court, a third of our government. How do I celebrate and rejoice when our highest court has taken our bodily autonomy? How do I celebrate and rejoice when my daughter will now have to fight the same battles as her grandmothers?
In 1967, my mother-in-law went to Mexico to obtain an abortion. As a middle-class white woman, she had access to abortion even when it was illegal here, but the procedure was not safe and she suffered a terrible infection that hospitalized her. Apparently, 1967 is back; once again, privilege begets access to abortion but not without risk and difficulty.
In this dismal reality, my only solace is the “Reproductive Health Equity Act” that Governor Polis recently signed into law on April 4, 2022. This Act codifies reproductive rights for Coloradans, ensuring all individuals have the fundamental right to use or refuse contraception, and all pregnant individuals have the choice to have an abortion or continue their pregnancies to birth. It clarifies that a fertilized egg, embryo, or fetus does not have independent or derivative rights under the laws of the state. It also prohibits public entities from denying, depriving, restricting, interfering with, or discriminating against an individual’s reproductive rights. The legislative declaration specifically recognizes that not only does family planning allow individuals to pursue their personal goals but also “it helps decrease the health and socioeconomic disparities disproportionately faced by people of color and people with low incomes.” HB 22-1279, available at https://leg.colorado.gov/sites/default/files/2022a_1279_signed.pdf. Further, [w]hen individuals decide to have an abortion or use contraception, it is critical that they get care on a timeline that works for their health, with the support of providers whom they trust.” Amen! Thank goodness for all the legislators and organizers who enabled this bill to pass. In doing so, Colorado joined 15 other states and Washington DC, which have codified reproductive rights related to abortion.
As we continue to grieve, regroup, and mobilize to share or spread access, at least we can find some comfort in the protection afforded by the Reproductive Health Equity Act. Eating a whole bag of marshmallows also provides momentary help with the bitter taste.
Lynn Noesner is a Lead Deputy State Public Defender in the Appellate Division. In that capacity, she works to protect the state and federal constitutions and ensure that her indigent clients receive fair process in the criminal system. Lynn received her law degree from the University of Denver Sturm College of Law and her Bachelor of Arts in English and Women's Studies from Colgate University. In her free time, Lynn enjoys yoga, hanging out with her four-year-old daughter, and fighting oppression.