CO Code § 25.5-4-415 (2021)
2021 Colorado Code|Title 25.5 - Health Care Policy and Financing|Article 4 - Colorado Medical Assistance Act - General Medical Assistance|Part 4 - Providers - Reimbursement|§ 25.5-4-415. No Public Funds for Abortion - Exception - Definitions - Repeal

  It is the purpose of this section to implement the provisions of section 50 of article V of the Colorado constitution, adopted by the registered electors of the state of Colorado at the general election November 6, 1984, which prohibits the use of public funds by the state of Colorado or its agencies or political subdivisions to pay or otherwise reimburse, directly or indirectly, any person, agency, or facility for any induced abortion.    If every reasonable effort has been made to preserve the lives of a pregnant woman and her unborn child, then public funds may be used pursuant to this section to pay or reimburse for necessary medical services, not otherwise provided for by law.      Any medically necessary services performed pursuant to this section shall be performed only by a provider who is licensed by the state and acting within the scope of the provider's license and in accordance with applicable federal regulations.    (Deleted by amendment, L. 2021.)         Any physician who renders necessary medical services pursuant to subsection (2) of this section shall report the following information to the state department:   The age of the pregnant woman and the gestational age of the unborn child at the time the necessary medical services were performed;    The necessary medical services which were performed;    The medical condition which necessitated the performance of necessary medical services;    The date such necessary medical services were performed and the name of the facility in which such services were performed.       The information required to be reported pursuant to paragraph (a) of this subsection (4) shall be compiled by the state department and such compilation shall be an ongoing public record; except that the privacy of the pregnant woman and the attending physician shall be preserved.       For purposes of this section, pregnancy is a medically diagnosable condition.    For the purposes of this section:     “Death” means: (a) (I) “Death” means:   The irreversible cessation of circulatory and respiratory functions; or    The irreversible cessation of all functions of the entire brain, including the brain stem.       A determination of death under this section shall be in accordance with accepted medical standards.       “Life-endangering circumstance” means:   The presence of a medical condition, other than a psychiatric condition, as determined by the attending physician, which represents a serious and substantial threat to the life of the pregnant woman if the pregnancy continues to term;    The presence of a lethal medical condition in the unborn child, as determined by the attending physician and one other physician, which would result in the impending death of the unborn child during the term of pregnancy or at birth; or    The presence of a psychiatric condition which represents a serious and substantial threat to the life of the pregnant woman if the pregnancy continues to term. In such case, unless the pregnant woman has been receiving prolonged psychiatric care, the attending licensed physician shall obtain consultation from a licensed physician specializing in psychiatry confirming the presence of such a psychiatric condition. The attending physician shall report the findings of such consultation to the state department.       “Necessary medical services” means any medical procedures deemed necessary to prevent the death of a pregnant woman or her unborn child due to life-endangering circumstances.       If any provision of this section or application thereof is held invalid, such invalidity shall not affect other provisions or applications of this section which can be given effect without the invalid provision or application, and to this end the provisions of this section are declared severable.    Use of the term “unborn child” in this section is solely for the purposes of facilitating the implementation of section 50 of article V of the state constitution, and its use shall not affect any other law or statute nor shall it create any presumptions relating to the legal status of an unborn child or create or affect any distinction between the legal status of an unborn child and the legal status of a fetus.    This section shall be repealed if section 50 of article V of the Colorado constitution is repealed.     History. Source: L. 2006: Entire article added with relocations, p. 1851, § 7, effective July 1. L. 2021: (3) amended,(SB 21-142), ch. 168, p. 934, § 3, effective May 21.    Editor's note:   This section is similar to former § 26-4-512 as it existed prior to 2006.   Cross references:   For the legislative declaration in SB 21-142, see section 1 of chapter 168, Session Laws of Colorado 2021.   ANNOTATION   Annotator's note. Since § 25.5-4-415 is similar to § 26-4-512 as it existed prior to the 2006 amendments relocating article 4 of title 26 to title 25.5 and § 26-4-512 is similar to § 26-4-105.5 as it existed prior to the 1991 repeal and reenactment of article 4 of title 26, relevant cases construing those provisions have been included in the annotations to this section.   This section does not violate article V of section 50 of the constitution. Under this statutory section, reimbursement may not be provided for an abortion that is not necessary to prevent the death of the pregnant woman. Therefore this section is consistent with section 50 of article V which expresses the intention of the people that no induced abortion shall be paid for by public funds unless necessary to prevent the death of the pregnant woman and unless every reasonable effort also has been made to preserve the life of the unborn child. Urbish v. Lamm, 761 P.2d 756 (Colo. 1988).   Statutory authority for rules interpreting the exception to the expenditure of public funds for abortions exists where legislation found in this section specifically states that “if every reasonable effort has been made to preserve the lives of a pregnant woman and her unborn child, then public funds may be used pursuant to this section to pay or reimburse for necessary medical services, not otherwise provided by law.” Urbish v. Lamm, 761 P.2d 756 (Colo. 1988).   Rule promulgated by department of social services which provided that when a pregnant woman's life is endangered, public funds may be used for an abortion of a viable unborn child before term only in circumstances where every reasonable effort has been made to preserve the lives of both the mother and the unborn child is within the scope of the exception to the prohibition on the use of public funds to pay for abortions. In contrast, a rule which allowed the public funding of abortions of unborn children who would die of natural causes at or before birth even if the mother's life was not threatened by carrying the unborn child for a longer period was beyond the scope of the exception. Urbish v. Lamm, 761 P.2d 756 (Colo. 1988).   Colorado's restriction on medicaid abortion funding to those instances when the expectant mother's life is at stake violates the requirements of federal law - requirements that Colorado is compelled to follow as a condition of its participation in medicaid. Hern v. Beye, 57 F.3d 906 (10th Cir. 1995).   Colorado's abortion funding restriction impermissibly discriminates in its coverage of abortions on the basis of a patient's diagnosis and condition. Hern v. Beye, 57 F.3d 906 (10th Cir. 1995).   Colorado's abortion funding restriction violates Title XIX of the Social Security Act of 1965, 42 U.S.C. § 1396a(a)(17), because it is inconsistent with the basic objective of Title XIX, that is, to provide qualified individuals with medically necessary care. A state law that categorically denies coverage for a specific, medically necessary procedure except in those rare instances when the patient's life is at stake is not a “reasonable standard[] . . . consistent with the objectives of [the Act]”, 42 U.S.C. § 1396a(a)(17), but instead contravenes the purposes of Title XIX. Hern v. Beye, 57 F.3d 906 (10th Cir. 1995).   Colorado's abortion funding restriction violates federal medicaid law insofar as it denies funding to medicaid-eligible women seeking abortions to end pregnancies that are the result of rape or incest. So long as Colorado continues to participate in medicaid, the state is enjoined from denying medicaid funding for abortions to qualified women whose pregnancies are the result of rape or incest. Hern v. Beye, 57 F.3d 906 (10th Cir. 1995).