Utah still cannot enforce its law prohibiting abortions except in cases of rape, incest or health, according to a recent court ruling.
The ruling was handed down by the Utah Supreme Court on Thursday. The legal battle will continue even though the law will still be blocked from going into effect. The question of whether or not the law itself is constitutional will continue as the lawsuit plays out in lower courts. It also means abortion remains legal in Utah for up to 18 weeks into a pregnancy for the time being. Once the ultimate constitutionality of Utah’s abortion law is determined, that could change.
The case in question, Planned Parenthood Association of Utah v. State of Utah, arose after the United States Supreme Court overturned the precedent set by Roe v. Wade. Abortion was sent back down to the states as a result of the decision in Dobbs v. Jackson Women’s Health Organization.
It was a 4-1 decision with Chief Justice Matthew Durrant as the lone dissent.
The opinion of the court upheld a decision from a lower court to block the law. The court said Planned Parenthood Association of Utah presented serious issues with the law to prove its standing.
Citing a different case and saying though the court did not analyze the Utah Constitution to resolve that case, the court said, “Our recognition of an individual’s fundamental right under the federal constitution to make one’s own medical decisions raises serious issues about whether the similarly worded provision of the Utah Constitution also protects this right.”
The court said the state did not address the balance of harms when in district court, and in this case, the balance of harms weighed toward continuing to block the law. While the court agreed the state has an interest in protecting life, it said the state did not address the injury to it that would occur if the law was still blocked.
Writing the dissent, Durrant quoted a previous opinion to say plaintiffs have to show “distinct and palpable injury that gives (them) a personal stake in the outcome of the legal dispute.”
“Our precedent firmly establishes that this traditional rule safeguards core principles, among them the separation of powers mandated by the Utah Constitution and the integrity and efficiency of the judiciary as a whole,” wrote Durrant.
Durrant said he disagreed both with the district court’s decision and with the decision handed down by the Utah Supreme Court. He said Planned Parenthood Association of Utah lacks standing. Though the organization said individual patients would be prevented from challenging the law on their own, Durrant said he did not think that was the case.
“Because abortion is a monumentally significant legal issue, there are multiple national advocacy organizations, PPAU’s parent organization among them, that have both the desire and the means to fully litigate challenges to laws restricting abortion access,” said Durrant, adding the case in front of him proved the very same point.
Durrant also said women who were worried about coming forward in a public lawsuit could file using pseudonyms, and so the idea that Planned Parenthood Association of Utah has the standing to file the suit does not hold water in his view.
“The difficulties that PPAU’s patients face are genuine, but they are not that different from those faced by many others who wish to challenge a law’s constitutionality,” said Durrant. “Appellate litigation is undoubtedly too expensive, inconvenient, and time-consuming. But if these factors alone are enough to justify the exercise of third-party standing, then we risk a dangerous expansion of that doctrine.”
Durrant said his opinion is the preliminary injunction blocking the law should be overturned and Planned Parenthood Association of Utah should be denied third-party standing.
Utah’s abortion law
Once states could decide their own abortion laws, Utah’s law went into effect. Originally sponsored by Sen. Daniel McCay, R-Riverton, and Rep. Karianne Lisonbee, R-Clearfield, the law was passed and signed in 2020. It prohibited abortions except in cases of rape, incest or health.
When carving out the health exception, the law prevented providers from performing abortions in cases of Down syndrome or cerebral palsy — an abortion could only be provided in cases of a severe brain abnormality causing a person to live in a mentally vegetative state. Two physicians would need to uniformly diagnose the defect. The health exception allowed for mothers who would die unless they had an abortion or they would have “a serious risk of substantial and irreversible impairment of a major bodily function.”
The law carved out avenues for enforcement.
If a person was found to have performed an abortion, they would be guilty of a second-degree felony. In the state of Utah, a second-degree felony may be punished by one to 15 years in prison and up to $10,000 in fines. A physician who performed an abortion would have the violation reported to the body that regulates their licensing. Abortion clinics who violated the law could have their licenses revoked.
Planned Parenthood Association of Utah filed a suit in 2022 over the law in Utah’s 3rd District Court. An injunction was shortly issued, which blocked the law. The case was taken up by the Utah Supreme Court.
Planned Parenthood v. Utah
The suit named the state of Utah, Attorney General Sean Reyes, Gov. Spencer Cox and Director of the Utah Division of Occupational Professional Licensing Mark Steinagel as defendants.
Planned Parenthood alleged Utah violated rights protected by the state constitution and also that it fails strict scrutiny.
“First, it eliminates wholesale the fundamental right to determine one’s family composition,” claimed Planned Parenthood in the filing. “Second, it also affects existing parent-child relationships, as well as the relationship between potential parents.”
The organization argued since these rights are protected, the law would be subject to a legal test known as strict scrutiny: To pass strict scrutiny, a law would have to be narrowly tailored to address a compelling state interest.
Planned Parenthood also argued the law violates a right to bodily integrity and imposes a religious view on when life begins onto Utahns.
The state of Utah argued in a filing that the Utah Constitution does not explicitly protect a right to abortion and it also does not protect an implied right to abortion.
“The binding test for interpreting the Utah Constitution asks what ordinary speakers of the English language would have understood the constitutional text to mean when it was adopted,” said the state. “When Plaintiff’s ten cited provisions were adopted in 1896, not one person in Utah would have understood any one of them to protect an implied right to abortion.”
Attorneys for Utah drew on the state’s long history of prohibiting abortion — laws that were in effect when Utah was a territory, not a state. After the state adopted the state constitution, it still had laws against elective abortion.
The state said the framers never intended for the Utah Constitution to imply a right to abortion and the Legislature has the authority to pass laws in this area. As for the specific constitutional rights Planned Parenthood pointed toward, the state said those do not protect an implied right to abortion.
With regards to Planned Parenthood’s claim about imposing a religious view onto Utahns, the state said, “Plaintiff has not identified a single Utah law ever held to violate this provision by ‘imposing on Utahns a state-mandated view’ as to an ‘inherently spiritual and religious question.’ If Plaintiff’s argument were correct, such a case should not be hard to find.”
The state also contended the law did not have to be subject to strict scrutiny because it did not violate the state constitution. Even if it was subject to this legal test, the state said the Legislature demonstrated compelling interest.
Attorneys for the Utah Legislature filed an amicus brief in support of the state.
“The Legislature seeks to preserve its prerogative to act as the voice of the People and to enact legislation reflecting policy choices, even on controversial and emotional issues, and to have the legislation reflecting those policy choices implemented without undue interference from the courts,” the brief said.
Counsel for Pro-Life Utah also filed a brief in support of the state saying after studying Utahns at the time of the constitution’s ratification, it is clear Utahns “viewed abortion not just as a genera subject of legislative regulation but as a basis for criminal prohibition.”
“On the spectrum of subjects ranging from what the framing public agreed ought to be punished to what the framing public agreed ought to be constitutionally protect, abortion fell firmly in the former,” the brief said. “Abortion was not a right — it was a wrong, legally and morally. The people did not understand the Utah Constitution to protect what they abhorred and criminalized.”
The League of Women Voters of Utah filed an amicus brief in support of Planned Parenthood. The brief argues most women seek abortions out because of finances and denying them abortions will harm them economically.
The organization also argued even though abortion was criminalized in the state, women still had abortions.
The case was argued before the Utah Supreme Court and the decision handed down Thursday is not the end of the legal battle, as the suit will continue in lower courts.
The other law about abortion clinics
After the initial suit from Planned Parenthood was filed, the Utah Legislature passed a law in 2023 about abortion clinics. The law required abortions to generally occur in hospitals and prevented the state from licensing more abortion clinics.
It also would require abortion clinics to stop operations on Jan. 1, 2024.
Cox signed it into law on March 15, 2023, and then lawyers for Planned Parenthood Association of Utah filed a supplemental complaint to the existing suit to challenge this law as well. A district judge issued a preliminary injunction against the law, which blocked it from going into effect.
During the 2024 legislative session, Lisonbee sponsored another bill with McCay to repeal parts of the law in order to simplify the legal issues.
“That bill made several important policy changes and clarifications to protect both the sanctity of life and pregnant women who are experiencing rare and dangerous complications during pregnancy,” said Lisonbee earlier this year. “And that is important because those provisions remain in the bill and they will not be repealed.”
What was repealed was the language about the state no longer issuing licenses and the requirement that abortion clinics meet the definition of hospitals. Lisonbee said the repeal would allow the courts to focus on ruling on the constitutionality of the underlying trigger law. If the courts decide to uphold the other law, then elective abortion would no longer be legal in Utah and this issue about the clinics would be moot.
Are trigger laws upheld in other states?
States like Florida and Texas have survived legal challenges to their abortion laws.
Following the reversal of Roe v. Wade, Florida passed a heartbeat law banning abortion after six weeks. Florida Gov. Ron DeSantis signed it into law in 2022. But prior to the heartbeat law, the Florida Legislature had banned abortion after 15 weeks that was challenged by Planned Parenthood. The Florida Supreme Court upheld the 15-week ban — and that allowed the six-week ban to go into effect a month after the state Supreme Court made that decision.
The heartbeat ban was only slated to go into effect after the Florida Supreme Court upheld the 15-week law.
The Texas Supreme Court also upheld the state’s abortion law after a group of women challenged the law claiming they could not get abortions, though they had complications. The court said the state allowed for life-saving abortions and upheld the law.
One state did see laws restricting abortion get struck down by the court.
The Kansas Supreme Court struck down a law aimed at banning the abortion procedure known as dilation and evacuation where fetuses may be dismembered and another law requiring abortion clinics to heighten their standards of care. The justices said the Kansas Constitution protects a right to autonomy and that remains a right to abortion is protected.
The lone dissent Justice Caleb Stegall said the majority’s decision marked a departure from how state government usually operated.
“It is noteworthy that the majority cannot bring itself to acknowledge the government’s compelling interest in unborn human life,” wrote Stegall.