How federal policies could impact abortion, LGBTQ+ rights in Colorado
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DENVER — On the same night the United States vote to return President Donald Trump to the White House, Colorado voters overwhelmingly supported ballot initiatives enshrining protections for abortion and same-sex marriage.
Trump has told several media outlets he would veto a national abortion ban and has given varying answers on his support for same-sex marriage, but Project 2025, a political initiative published by the Heritage Foundation as an outline for Trump’s presidency, calls for banning abortion pills and limiting access to abortion. Throughout his campaign, Trump repeatedly said he had not read Project 2025. However, CNN reported 140 of the project’s contributors worked in his first administration.
Rocky Mountain PBS interviewed three Colorado legal scholars to ask how federal policies could interfere with the state’s protections for abortion and same-sex marriage.
Abortion
Approximately 62% of Colorado voters — roughly 1.9 million people — voted to prohibit state and local governments from restricting access to abortion and to continue allowing public funds to be used for abortion services.
Rocky Mountain PBS interviewed three legal experts. They all said banning abortion in Colorado and other states with enshrined protections would take more than Trump signing an executive order or Congress passing laws.
“Our view would be that the federal government can’t override Colorado’s now voter-determined constitutional right to reproductive healthcare,” said Tim Macdonald, ACLU Colorado’s legal director.
Ryann Peyton, the executive director of the Colorado Attorney Mentoring Program, said a federal abortion ban would “pretty much certainly” make its way to the United States Supreme Court.
“If the Supreme Court applied the same logic and reasoning that they did in the Dobbs case, a federal abortion ban probably would not stand,” Peyton said.
All three attorneys said gradually chipping away at abortion access is much more likely – and easier to fulfill – than outright outlawing it.
“I think there are going to be a lot of ways to make it very difficult to get abortion in this country,” said Iris Halpern, a partner at Rathod Mohamedbhai LLC.
The Supreme Court in June dismissed a lawsuit that attempted to limit access to mifepristone, one of the two drugs used in medical abortions. As of June 2024, 14 states had near-total bans on mifepristone.
Halpen and Peyton said the court could take up another challenge to mifepristone. In the court’s unanimous decision, Justice Brett Kavanaugh wrote that suit’s plaintiffs did not have legal ground for the lawsuit, but that the “proper place to voice objections to (mifepristone) is in the political or regulatory arena.”
If Congress passes a federal abortion ban, the president signs it and the Supreme Court upholds it, federal law would trump state laws, and Colorado’s constitutional protections would be moot.
All three attorneys said the government could restrict federal funding for abortion care and more states could ban the procedure in the interim.
Thousands of out-of-state patients have sought abortions in Colorado in the last two years since the Supreme Court overturned Roe v. Wade, and that number could increase in coming years if more states ban or restrict the procedure.
The attorneys also said predicting the future in the Trump era is difficult given his rhetoric, which has included at times calling to “terminate the constitution." Fox News host Sean Hannity asked in a live interview if Trump planned to rule as a dictator to which the president-elect responded, “no, no, no. Other than day one. We’re closing the border, and we’re drilling, drilling, drilling. After that, I’m not a dictator.’”
“What’s so unique about Trump and this campaign is you never know what's real and what's just rhetoric,” Peyton said. “I think that's what’s leading to so much anxiety.”
Same-sex marriage and LGBTQ+ rights
More than 60% of voters, nearly 1.4 million people, voted to throw out language in Colorado’s constitution defining marriage as a union between one man and one woman. Now that voters have amended the constitution, the state legislature could pass a law enshrining the right to same-sex marriage.
Like abortion, Trump’s public statements on same-sex marriage have shifted through the years. In 2015, he told CNN’s Jake Tapper he is “for traditional marriage.” In a 2016 interview with 60 Minutes, Trump said the law was “settled on gay marriage but not on abortion.” The 2024 Republican Party platform removed language that opposed same-sex marriage.
In the Obergefell v. Hodges case decided in 2015, the Supreme Court ruled that all 50 states must issue marriage licenses to same-sex couples and recognize same-sex marriage, deeming it a right protected by the Fourteenth Amendment.
The three attorneys interviewed by Rocky Mountain PBS said banning gay marriage at the federal level would be unlikely because doing so would open up legal questions about couples who are already married. Additionally, gay marriage enjoys historically high and bipartisan popularity levels.
In the 2022 Dobbs case overturning abortion, Justice Clarence Thomas mentioned the court could revisit the Obergefell decision. Macdonald, Halpern and Peyton said they believed the court is unlikely to overturn the case.
The more likely scenario, they said, is that certain states could decide not to issue marriage licenses to same-sex couples or recognize same-sex married couples from other states moving to their state, which the court would likely uphold.
If the court did uphold a federal ban on same-sex marriage, Peyton said those who have already been married would be in difficult legal grey area.
“You can enforce going forward, but you can't undo what's already happened,” Peyton said. “Practically speaking, I think it would be almost impossible to stop recognizing marriages that have already happened, but the devil will be in the details.”
More likely than outright banning gay marriage, the three attorneys said, is dismantling federal protections for LGBTQ+ people.
Project 2025 advocates for the removal of LGBTQ+ people from federal discrimination protections. It also calls for banning gender-affirming care for minors, which the American Medical Association considers “medically necessary and potentially life-saving.”
Gender-affirming care for children usually involves social changes, such as changing hairstyles, clothing or using a different name and pronouns. Children who have not yet hit puberty are sometimes eligible for puberty blockers, which are reversible.
In most states where such care is legal, children can begin taking hormone-replacement therapy at 16 years old, and children are rarely eligible for surgeries. Twenty-five states have attempted to ban gender-affirming care for minors, though some bans are held up in court battles.
Families of transgender children have flocked to Colorado for its protective laws.
Project 2025 calls for requiring children who play sports to play on teams according to their biological sex rather than their gender identity. It also calls for the government to revoke funding from schools that use students’ chosen name and pronouns and teach about LGBTQ+ identities, as well as bar Medicaid funding from hospitals who provide medical gender-affirming care to minors.
Peyton said the government is slow and Americans could wait months or years before such restrictions are passed. In the interim, anti-LGBTQ+ rhetoric has spiked and calls to LGBTQ+ crisis lines rose by 700% after the election.
“Even if the worst fears don't come to fruition, the damage has already been done to marginalized communities who are now having to wonder if their basic human rights are going to be intact after Jan. 20,” Peyton said.
“The practical impact on mental health is devastating.”