The Utah Supreme Court heard oral arguments Tuesday on whether to extend a preliminary injunction on Utah’s abortion trigger law. Lifting the injunction would allow the law to take effect, ending abortion in most cases in the state.
After more than four hours of argument, the court took the matter under advisement and will issue a ruling at a later date.
The arguments delved into whether the plaintiff Planned Parenthood Association of Utah has standing to wage constitutional rights claims, whether there is a right under the Utah Constitution to terminate a pregnancy, and a number of hypothetical questions regarding the implications of outlawing other medical procedures.
If the court decides to end the injunction, Utah’s trigger law would take effect, which would prohibit abortion in most cases with these exceptions: if the mother’s life is at risk, if the pregnancy was a result of rape or incest, or if two physicians who practice maternal fetal medicine both determine that the fetus “has a defect that is uniformly diagnosable and uniformly lethal or ... has a severe brain abnormality that is uniformly diagnosable.”
Current state law permits elective abortions up to 18 weeks of pregnancy.
SB174, colloquially referred to as the trigger law, was passed by the Utah Legislature in 2020 in anticipation of the Supreme Court overturning Roe v. Wade, which it did in a 5-4 decision in 2022. The Utah law was put on hold by a district court judge while a lawsuit filed by Planned Parenthood Association of Utah against the state arguing the law is unconstitutional is considered in court.
A lower court order to enjoin the law, now on hold for one year and 28 days, has allowed “thousands of abortions to proceed. The preliminary injunction should be vacated with all deliberate speed,” said Taylor Meehan, a private attorney arguing on behalf of the state of Utah.
“Any searching review of the Utah Constitution leads to this conclusion that abortion is one of those areas where the people left their elected officials free to exercise their judgment and servants of their constituents,” she said.
Camila Vega, staff attorney with Planned Parenthood Federation of America, told the court the injunction that has halted Utah’s trigger law from taking effect “is currently shielding the women and families of Utah from grave harm to their health and their rights.”
Vega said the only question this court must answer is whether 3rd District Court Judge Andrew Stone abused his discretion in finding that there were serious issues with any of Planned Parenthood’s constitutional claims.
“I think this morning’s robust merits discussion shows there was no such abuse of discretion here,” Vega said.
A 2023 law that would prohibit licensing abortion clinics and would require abortions to be performed in a hospital was also enjoined by an order by Stone after Planned Parenthood Association of Utah challenged that law.
Meehan further argued that under the Utah Constitution “there is no fundamental constitutional right to terminate a pregnancy, or in other words, there’s no fundamental constitutional right to permanently end the life of an unborn child. Now, by saying that, that doesn’t mean that the debate ends it means the debate finally gets to begin,” she said.
Justice Paige Petersen asked about the history of the drafting of the Utah Constitution. While newspaper accounts indicate women were in the crowded Salt Lake City-County Building during debates, no women voted on the principles enshrined in the document.
“It seems important in this context, because women are the ones that experience pregnancy and experienced childbirth, experience reproduction. And so I’d like to get a sense of that perspective of history. But I’m not seeing much of it. And so I wonder, do we need that? Do you think that’s relevant?” Petersen said.
Meehan said Utah has “a very unique history when it comes to the voices of women and one that should be championed.”
“Utah was ahead of its time and the political rights of women, as you mentioned, dominated portions of the debate. Utah, you know, sent its first woman state senator to a state Senate. So it would be an oversimplification to say that women had no voice in the ratification of the Constitution. I think women had an unprecedented voice in the ratification of Utah’s constitution,” Meehan said.
Kathryn Boyd, president and CEO of Planned Parenthood Association of Utah, said in a briefing last week that allowing Utah’s laws to take effect would create “chaos” for women’s health.
“Utah’s abortion ban prioritizes political ideology over patients’ health and lives. It is extreme by any measure,” Boyd said.
Some of the justices posed hypothetical questions regarding the implications of outlawing other medical procedures.
“Could the state outlaw vasectomies and not implicate a constitutional right?” inquired Justice Diana Hagen.
Meehan responded, “No, your honor. I don’t think the state could outlaw that based on Griswold v. Connecticut.”
Vasectomy is a helpful analog in the Utah case because “at the time of the vasectomy, it is one person. At the time of the abortion, it is two people. Again, Utah Code recognizes the unborn child as a person,” she said.
Griswold v. Connecticut was a 1965 case in which the U.S. Supreme Court ruled that a state’s ban on the use of contraceptives violated the right to marital privacy.
In closing, Meehan said abortion is a very serious political, philosophical and policy issue.
“But based on what the court has before it now, the court can and should decide that the constitutional arguments raised by Planned Parenthood today are not serious issues of law that can warrant the extraordinary remedy of enjoining the state’s law for one year and 28 days,” she said.
Vega urged the court to maintain the preliminary injunction and to “protect the 50-year status quo for women and their families while the Utah courts consider the very serious and important issues posed by this case.”