Discussing a proposed a ballot initiative that, according to a November 14 Rocky Mountain News article, “would define a fertilized egg as a person in Colorado,” 630 KHOW-AM co-host Dan Caplis asserted on November 14 that abortion is “completely legal in the third trimester -- up to and through birth -- in all 50 states.” However, while the U.S. Supreme Court has required that states allow abortions to protect the woman's health throughout all nine months of pregnancy, Caplis did not acknowledge that 36 states attempt to prohibit abortions beyond various points in pregnancy: 23 of those states “at fetal viability,” five “in the third trimester,” and eight after “a certain number of weeks, generally 24,” according to a November 1 Guttmacher Institute fact sheet.

As the News reported, “The wording of a proposed initiative that would define a fertilized egg as a person in Colorado won an OK from the state Supreme Court on Tuesday.” The article continued:

The 7-0 decision sent abortion opponents into the streets to begin collecting 76,047 signatures in the next six months, enough to put the constitutional amendment on the November 2008 ballot."

Caplis was discussing the proposed ballot initiative with co-host Craig Silverman.

From the November 14 broadcast of 630 KHOW-AM's The Caplis & Silverman Show:

CAPLIS: I understand why you, and NARAL, and Planned Parenthood are going to try to focus on birth control and in-vitro scare tactics. But what's really going to happen is through this debate, people are going to start to learn more about the reality of the unborn at all different stages -- and about the reality of abortion laws. Look at you: You're a brilliant, accomplished attorney who's been studying law; you've been to law school. And even a thoroughly informed person like you thought that abortion was illegal in the third trimester. Abortion is completely legal in the third trimester -- up to and through birth -- in all 50 states.

SILVERMAN: If the health of the mother is at risk.

CAPLIS: But, Craig, my point is this: Even you, such a sophisticated attorney, were unaware coming into this conversation that the other cases following Roe have made the health exception meaningless -- absolutely meaningless.

SILVERMAN: In your view.

CAPLIS: No, not in my view -- in the view of every single informed person on both sides of this issue.

SILVERMAN: I disagree.

CAPLIS: You won't find a single NARAL person -- or a single pro-choice person -- who will deny the fact that the health exception now includes a doctor saying, “That's not good for her lifestyle.” That's what it says in the case law. A doctor can say, “No, this isn't going to be good for her lifestyle,” and that qualifies as a health exception. So anyway, hey, let's come back -- you know how we feel, and we appreciate you listening to that -- come back and get your take on the “personhood” amendment.

The U.S. Supreme Court in its landmark abortion rights ruling in the case Roe v. Wade and in subsequent rulings essentially has required that states allow abortions to protect the woman's health throughout her pregnancy. In its opinion in the 1992 case of Planned Parenthood of Southeastern Pa. v. Casey, the court stated:

It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each. [emphasis added]

[...]

(e) We also reaffirm Roe's holding that “subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Roe v. Wade, 410 U. S., at 164-165.

In the subsequent case of Stenberg v. Carhart, the court quoted from the Casey ruling in stating that, “Postviability, the State, in promoting its interest in the potentiality of human life, may regulate, and even proscribe, abortion except where 'necessary, in appropriate medical judgment, for the preservation of the [mother's] life or health.' ”

However, Caplis did not acknowledge that numerous states have attempted to bar or limit later-term abortions, as detailed by the Guttmacher Institute fact sheet “State Policies on Later-Term Abortions”:

• 36 states prohibit some abortions after a certain point in pregnancy.
• 3 states initiate prohibitions at fetal viability.
• 5 states initiate prohibitions in the third trimester.
• 8 states initiate prohibitions after a certain number of weeks, generally 24.

The document also included a chart summarizing “later-term abortion policies” in those 36 states.