Colorado Legislative Council Staff



(replaces fiscal impact dated January 11, 1999)

Drafting Number:

Prime Sponsor(s):

LLS 99-0344

Sen. Lamborn


Bill Status:

 Fiscal Analyst:

February 18, 1999

Senate 2nd Reading

Kirk Mlinek (303-866-4784)



Fiscal Impact Summary

FY 1999/2000

FY 2000/2001

State Revenues

General Fund


Minimal Fine Revenue

State Expenditures

General Fund

Cash Fund Exempt

Federal Fund







FTE Position Change


0.5 FTE

Other State Impact: TABOR

Effective Date: Upon signature by the Governor.

Appropriation Summary for FY 1999-2000:

Health Care Policy and Financing: $481,660 GF and $483,591 FF

Human Services: $31,200 GF; $10,400 CFE; $10,400 FF; and 0.5 FTE

Local Government Impact: Possible impact on county jails (See Local Government Section).

Summary of Legislation

            The bill was amended by the Senate State, Veterans, and Military Affairs Committee on February 10, 1999. The primary concept of the bill, making it unlawful, except in certain circumstances, to knowingly abort a viable fetus, is unchanged. Each section of the bill, as amended, is discussed below.

            Section 1 of the amendment expands the definition of the term “abortion,” and adds definitions for the terms “fertilization”, “gestational age”, “hospital”, “live birth,” “medical emergency”, “pregnant”, and “unborn child”, and adds “viability” to the subsection that defines the term “viable”.

            The new Subsection 3 makes it unlawful for any person to intentionally, knowingly, or recklessly perform or induce an abortion when an unborn child is viable. Exceptions are shown below.

1)It is not a violation of Subsection 3 if the abortion is performed by a physician who believes that said abortion is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of the woman’s major bodily function. No abortion may be performed based on a claim or diagnosis that the woman will engage in conduct that would result in her death or in substantial and irreversible impairment of a major bodily function.

2) It is not a violation of Subsection 3 if the abortion is performed by a physician who has determined, pursuant to subsection (6) below, that the unborn child is not viable.

            Subsection 4 states that, except in the case of a medical emergency, each of the conditions listed below must be met prior to the performance of the abortion.

1) The physician performing the abortion must certify, in writing, that the abortion is necessary to prevent either the death of the mother or a serious risk of substantial and irreversible impairment of a major bodily function. Language in the printed version of the bill concerning the “proper examination and review of the woman’s medical history” has been stricken.

2) The written certification required in (1) above must be concurred by one other licensed physician, also in writing, that the abortion is necessary to prevent either the death of the pregnant woman or a serious and substantial and irreversible impairment of a major bodily function.

3) The abortion must be performed in a hospital.

4) The physician must terminate the pregnancy in a manner that provides the best opportunity for the unborn child to survive, unless termination in that manner poses a significantly greater risk of either death or impairment of the woman than would other methods of termination.

5) The bill stipulates that if the fetus is viable, the attending physician would be required to certify in writing that the procedure was necessary to prevent a substantial impairment to the life or physical health of the pregnant woman. Additionally, a second physician would be required to be present during the procedure for the purpose of taking control of and providing immediate medical care if the infant were born alive.

            The establishment of the crime of “Criminal Post-Viability Abortion” and related penalties are not changed by the amendment, but now appear as Subsection 5. A new sub-subsection (d) waives liability for hospital professional corporations, health plan carriers, or other entities employing, contracting, or affiliated with, or subject to the control of a physician who violates the provisions of the bill, as amended.

            Subsection 6 of the bill provides an exception from the determination of a fetus’ viability after 19 weeks of gestation in the case of medical emergency. Absent the medical emergency, the physician is required to determine and report on the viability of the fetus.

            Subsection 7 of the bill is the new location for the language concerning the requirement to treat any fetus born alive as a person.

            Subsection 8 is the new location for the language that permits the woman and her husband, if married, to waive parental rights. The amendment continues to provide for the county Department of Social Services to have temporary custody of a child that is born alive. It is this provision that could result in a state fiscal impact.

            Subsection 9 is new language that states that nothing in the proposed Section 18-6-102.5 requires any physician or hospital to perform an abortion that is contrary to the physician’s or hospital’s religious beliefs. Subsection 9 goes on to say that nothing in the proposed section shall be construed as ratifying, granting, or otherwise establishing a right to an abortion.

            Section 2 of the amendment establishes a safety clause. Language concerning an effective date of February 1, 2001, and the related referendum language, is stricken elsewhere in the amendment.

State Revenues

            If approved as amended, there would be an impact on state revenues. The bill establishes criminal post-viability abortion and classifies that offense as a class 1 misdemeanor. A class 1 misdemeanor carries a possible fine penalty between $500 and $5,000. These fines are collected and deposited in the State General Fund. Additionally, a person convicted of a class 1 misdemeanor could be sentenced to a period of incarceration between six months and 18 months to be served in a county jail. Since it is at the discretion of the court whether to impose a fine, a jail sentence, or both, the impact on the General Fund cannot be determined. The Judicial Branch does not have available data; however, it is estimated that the amount of fines collected would be minimal.

State Expenditures

            The provision of the bill that would require, for elective abortions that occur 19 weeks gestational age or after, that “all reasonable steps” be taken to preserve the “health and safety” of any viable fetuses. Women sometimes abort fetuses after a determination that the fetus has one or more medical anomalies such as Down’s syndrome, omphalocele (stomach born outside the body), hydrocephalus (enlarged brain), anencephalus (a brain stem without a brain), spina bifida, heart malfunctions, and the like. Although the bill permits those women to continue to elect to abort their fetuses, each fetus will be evaluated for viability prior to the procedure.


            The following assumptions were used to evaluate the bill’s fiscal impact.

            Determining the numbers of children born to women who elect to terminate their pregnancies. The Colorado Department of Public Health and Environment (CDPHE) estimates that in 1997 there were 318 abortions performed on fetuses that were 19 weeks gestational age or older. This number is an estimate because the data are collected according to the number who were less than 9 weeks; 9-10 weeks; 11-12 weeks; 13-15 weeks; 16-20 weeks; and 21 or more weeks.

            Data collected regarding the numbers of abortions performed after 19 weeks of gestation do not permit a differentiation between abortions performed due to a deficiency in the fetus versus abortions performed due to a life-threatening risk to the mother. The CDPHE estimates that 30 percent were undertaken to preserve the life of the mother or to prevent substantial harm to her health, and the balance of 70 percent were undertaken because of the condition of the fetus. Application of the 70 percent assumption to the 318 performed in 1997 results in 223 abortions that were performed due to the condition of the fetus.

            Having established the number of fetuses that will be aborted each year, the next step is to estimate the number that will be delivered with a “reasonable likelihood of sustained survival.” Survival rates by gestational age are shown in Table 1 below. Please note that the survival rate shown is for babies that are born prematurely, i.e., the mother goes into labor and delivers the baby. These women are not seeking an abortion. The adjustment to account for this fact appears at the bottom of the table.

Table 1

Estimate of Number of Viable Fetuses


Gestational Age


Number of Procedures


Survival Rate (%)


Number of Surviving Fetuses

(2) x (3)

19 weeks




20 weeks




21 weeks




22 weeks




23 weeks




24 weeks




25 weeks




26 weeks




27 weeks








50% Adjustment for Unhealthy Fetuses





            The 15.4 fetuses shown above are based on survival statistics for babies born prematurely and not as a result of a mother seeking termination. This fiscal note assumes that the survival rate for babies electively terminated by their mother that, prior to the procedure are deemed viable, and who have one or more medical anomalies, will further reduce the estimated population of 15.4 by 50 percent. This assumption yields a population of 7.7, which is rounded to 7.0 It is possible that all 15.4 mothers could be carrying viable fetuses as defined by the bill and could elect to waive parental rights.


Potential Costs to the State

             The following statistics were provided concerning Medicaid costs for nine babies born prematurely between January 1, 1996, and March 31, 1997, and who were less than 30 weeks gestational age. For the two infants born at 24 weeks; two at 25; one at 26; three at 28; and one at 29, the average Medicaid reimbursement was $47,808. For the two infants born at 24 weeks, the average was $137,893.

            Application of the average cost per infant of $47,808 to the 7 infants identified above yields a cost of $334,656. Assuming the scenario that all babies were born at 24 weeks, application of that average cost of care totals $965,251 (7 x $137,893/occurrence). Based on information provided by the Department of Health Care and Policy Financing, the higher figure is used.

            Determining the cost of foster care. Once the hospital stay is over, the focus becomes placement of the child in foster care. It is assumed that the 7 children who survive will be referred beginning July 1999. Further, it is assumed that once placed in the counties’ custody, each case will remain open for at least the two-year term covered in the worksheet. All 7 children are expected to be in specialized foster care for an average of 8 months. Once placed in foster care, it is assumed that each child will be adopted with a subsidy payment to the adoptive family that will continue until the child reaches age 21.

            The funding splits for the aforementioned assumptions are 20 percent for the counties; 40% will be Title IV-E eligible and the related costs will be 50 percent federally funded; and the General Fund will be used for the balance.

            Assuming the rate of entry into the system as noted above, costs appear in Table 2 below.

Table 2

SB 99-080

Foster Care Impact


FY 1999-2000

FY 2000/2001

Personal Services



Operating Expenses, including Legal Fees



Capital Outlay



Placement Costs



Total Expenses

$52,000 Total

$31,200 GF

$10,400 CFE

$10,400 FF

$52,000 Total

$31,200 GF

$10,400 CFE

$10,400 FF

Local Government Impact

            There could be an impact on local governments. The bill makes it a crime for any person to violate the statutory section, in addition to any other crime, and makes it a class 1 misdemeanor. A class 1 misdemeanor carries a penalty of six to 18 months incarceration in the county jail. In addition to, or in lieu of, a jail sentence, the court may impose a fine on the offender. However, it is at the discretion of the court to sentence an offender convicted of a class 1 misdemeanor to serve time in the county jail, to pay a fine, or both. In addition to the penalty for a class 1 misdemeanor, the bill requires a mandatory 30-day jail sentences for the first offense and a 90-day mandatory jail sentence for subsequent offenses. It is anticipated that doctors will comply with the law and although the impact on local government cannot be determined, it is estimated to be minimal.

State Appropriations

            The fiscal note would imply that the Department of Health Care Policy and Financing would require a General Fund appropriation of $481,660 and a federal funds appropriation of $483,591. The Department of Human Services would require 0.5 FTE and a General Fund appropriation of $31,200; a Cash Funds Exempt appropriation of $10,400; and a federal funds appropriation of $10,400.

Departments Contacted

            Health Care Policy and Financing      Judicial           Public Health and Environment


            Human Services