The U.S. Supreme Court ruled in 2022 that the U.S. Constitution could not be read to create a right to abortion. Since then, lawsuits in state courts have argued that even though the U.S. Constitution does not create a right to abortion, state constitutions might. The Utah Supreme Court’s recent ruling on this topic opens the door to such a view, with alarming lines of argument that suggest a fundamental misunderstanding of the role of courts in our constitutional system.
Resolving a case claiming that the Utah Constitution contains an unwritten right to abortion should be simple. In its Aug. 1 opinion in Planned Parenthood Association of Utah v. Utah, the Utah Supreme Court even noted that the state Constitution does not include a right to abortion, since abortion is not mentioned in that document.
The majority went on, however, to suggest that a right to abortion in Utah could exist “rooted in the same soil as … principles” recognized in previous cases. Viewing the law through such meta principles is reminiscent of Roe v. Wade’s “emanations and penumbras” approach to jurisprudence that has since been rightly overturned by the U.S. Supreme Court. This approach could allow the court to determine that abortion regulations are unconstitutional, even though the state has always understood the opposite to be the case — as reflected in the fact that the state has had laws on its books making abortions illegal since the enactment of its constitution.
The majority opinion, by contrast, suggests that the state Constitution or earlier court decisions could be read to include concepts like bodily integrity or a right to choose that could be the basis for requiring the state to allow abortions beyond the exceptional cases the current law provides for.
For instance, an earlier case recognized that the Utah Constitution prevents the state from removing children from their parents in the absence of a finding that the parents were unfit. Unlike abortion, the state had not consistently adopted a contrary policy in its laws. Drawing from this recognition of a parent’s right to rear their children absent harm to the child, the majority in Planned Parenthood articulated a more general right to make decisions about family, which could then be transmogrified into a decision to take the life of an unborn child.
The earlier case forbidding the state from taking children from fit parents, by the way, specifically disavowed the Roe v. Wade approach of creating new “rights” from abstract principles.
It is difficult, if not impossible, to know how such an approach could be limited. Under the reasoning of this new opinion, any time the court considers the assertion of a new “right,” it need not look to see if the text of the constitution and the history of its application demonstrates that the right is indeed recognized. Rather, it could just look behind the law to find abstract ideas related to that specific right and then extend the principle to other claimed rights, even where those are not consistent with the text and the historical application of the constitution. This should be deeply alarming to any who believe in governance based on a written constitution.
This alarm extends far beyond Utah. Earlier in the same week of the Utah Supreme Court’s opinion, President Joe Biden proposed new laws to undercut the U.S. Supreme Court’s independence based on a fundamental misunderstanding of the judicial role. The majority opinion in the Planned Parenthood case illustrates a possible misunderstanding similar to that of the president. The role of the court is to apply existing law enacted by the people and their representatives, not to discern new policies in nebulous meta principles behind the law in a way that usurps the Legislature’s role.
Since this is a preliminary decision and the court will have another chance to consider the arguments, it should do so in the context of the court’s proper role of applying existing law rather than breaking new policy ground.
William C. Duncan is the constitutional law and religious freedom fellow at Sutherland Institute.