The Supreme Court overturned Roe v. Wade. Utah's trigger abortion ban now in effect

SALT LAKE CITY — Elective abortions are now illegal in Utah, with few exceptions, after the Utah Legislature's general counsel determined the state's 2020 trigger ban meets the legal requirements following a Supreme Court decision overturning Roe v. Wade.

"I think we're on the right side of the issue," Sen. President Stuart Adams told reporters earlier Friday. "... The Constitution reflects very clearly that the state should have the right to be able to set policy like this and I actually believe the Supreme Court got that right."

The U.S. Supreme Court overturned Roe v. Wade on Friday, revoking the constitutional right to an abortion that has been in place for nearly 50 years.

The 6-3 decision to uphold Mississippi's restrictive abortion law and the 5-4 vote to overturn Roe clears the way for dozens of states, including Utah, to ban or restrict the practice, putting the country into uncharted political, legal, social and medical territory.

All six conservative justices voted to uphold Mississippi's law, but Chief Justice John Roberts criticized the other justices for going as far as to overturn Roe. Roberts didn't join his conservative colleagues in overturning Roe. He wrote that there was no need to overturn the broad precedents to rule in Mississippi's favor.

Legislators said they would consider spending more money to create a stronger safety net for women who are forced to carry pregnancies to term, and Adams said he wants to streamline the process of adoption to help women after they give birth.

Sen. Dan McCay, R-Riverton, who sponsored the trigger law, said he doesn't welcome money from outside groups to help Utah women travel to neighboring Colorado or Nevada to access abortion care. When asked if he thought women should be barred from traveling across state lines to seek care, he didn't rule out such a law in the future.

"That's not what the law says right now," McCay said. "And I think anything to that effect or to change the law that way would require getting through the legislative process, and, we'll see where that goes."

His co-sponsor on the trigger law, Rep. Karianne Lisonbee, R-Clearfield, jumped in, saying she doesn't see any efforts to restrict movement between states, adding that she seeks to punish abortion providers but not recipients.

"I don't think there's any contemplation that we would try to control someone's ability to process or to obtain an abortion elsewhere," Lisonbee said. "If somebody wants to do that, it's a free country, and we wouldn't be the type of authoritarian government (to restrict it)."

Some businesses — including Dick's Sporting Goods in Utah — have already promised to help women financially seek abortions in other states. Adams said he doesn't see any need to try to restrict or punish companies who help with travel and other expenses, for now he's content to "deal with the statute inside of the state."

The abortion landscape in Utah

With the Supreme Court's ruling, the legality of abortion is left to each state to decide. Anticipating such a decision, the Utah Legislature passed a so-called trigger law in 2020, which bans abortions in most cases.

Even with Friday's ruling overturning Roe, the trigger ban in SB174 didn't go into effect until Friday evening, when the legislative general counsel certified to the Legislative Management Committee that the ruling allows the state to "prohibit the abortion of an unborn child at any time during the gestational period."

Utah's law allows abortions only 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."

According to the state's Vital Statistics, there were 2,776 abortions performed in 2019. Based on the reasons given for those abortions, only 14 would have been allowed under the current trigger law, although the dataset doesn't include abortions that are the result of incest.

Utah's abortion rate has dropped by 48% since 1990. In 2019 there were 59 abortions performed out of every 1,000 live births. Sixty-seven percent of all abortions were performed within the first eight weeks of a pregnancy. Only 28 abortions happened beyond 21 weeks.

The majority of abortions were performed for socioeconomic reasons, and 41% involved married women. For the vast majority of women who received an abortion — 77% — it was their first.

About half of the women who received abortions in 2019 were using contraception at the time of conception. The most common forms of failed contraception were condoms, sponges, withdrawal, spermicide and natural family planning. Only 68 of those women had an IUD.

Nearly half of all Utahns think abortion should be legal only in cases of rape, incest and threats to the health of the mother, according to a Deseret News/Hinckley Institute of Politics poll conducted in May. Only 10% said abortion should be illegal in all cases, 13% agreed that abortion should be legal up to viability — which is the current standard of about 23 weeks into a pregnancy — and 16% said it should be legal in all cases.

Even with exceptions in the law for rape and incest, some advocates worry that the majority of survivors will be unable to terminate unwanted pregnancies because of how the law is written. Julie Valentine, forensic nurse, associate dean and professor at Brigham Young University, points out that in order to qualify to receive an abortion, a patient must have a police report on file — which many of them don't.

Sexual assault and rape are drastically underreported, with as few as 12% of assaults being reported to the police, according to a 2007 report by the Utah Commission on Criminal and Juvenile Justice.

"That negates the option for an abortion for the majority of women who have experienced rape or incest because they don't report. For my patient population, this is absolutely devastating," Valentine said Friday. "Personally, I think somebody can personally feel against abortion, but be pro-women's rights ... about what happens to their body. This sets us back a century. It's disturbing on many, many levels."

Valentine called rape a "health care issue" as well as a criminal issue. She urged those who are raped to visit any hospital emergency room as soon as possible — preferably within 72 hours — where they can get free plan B treatment to prevent unwanted pregnancies and other medications to prevent sexually transmitted infections.

Hospitals are required to report sexual assault cases to the police, but it's up to the individual to decide if they want to follow up and file a report. For treatment help or to speak with a therapist, survivors can call the Rape Recovery Center in Salt Lake City, The Refuge Utah in Orem, or the national sexual assault hotline at 1-800-656-4673.

On Friday, Lisonbee reassured people that the Legislature will continue to support laws to protect people from rape, saying "we are mindful ... we are concerned and that we want them to have the justice that they need and deserve."

Still, she said women and men share the responsibility for avoiding unwanted pregnancies. Lisonbee said she received a text message on Friday saying she should "seek to control men's ejaculations and not women's pregnancies, and that (she) clearly (doesn't) trust women enough to make choices to control their body."

"My response is, I do trust women enough to control when they allow a man to ejaculate ... inside of them and to control that intake of semen," Lisonbee said. "So, that may be inflammatory, but I think as a Legislature, we have a responsibility to create a legal framework that is friendly in supporting rights. But women and men have responsibility."

Utah is one of 13 states with trigger laws on the books, and a handful of states have restrictions on the books that were enacted before the Roe v. Wade ruling in 1973. While Utah's law isn't as strict as those in states like Texas or Oklahoma, some Utahns are wary that the Republican-controlled Legislature could be motivated to enact further restrictions.

"It wouldn't surprise me at all to see people calling on the Legislature to do a special session ... that addresses some of these feelings on the part of hardcore ideologues within the Republican party to say, 'We want to put in place the most restrictive reproductive rights bill possible in the state of Utah,'" House Minority Leader Brian King, D-Salt Lake City, told Deseret News after the leaked draft.

"Today's Republican Party is, 'We can't come down on reproductive rights too harshly,'" he added.

McCay said the exemptions may need to be tweaked, but he isn't aware of a widespread movement to roll them back.

Lawmakers may need to clarify if there should be a limitation on how late into a pregnancy an abortion would be allowed if the mother's health is jeopardized, or whether there needs to be a clearer definition of rape and incest and if a case would need to be "fully adjudicated as rape," he said.

While some think there should be further limits on who is eligible for an exemption because of rape or incest, McCay said, he doesn't think the law needs to go that far.

"It's tough to balance," he said. "Everyone's interested in the policy for sure. But the one person who is voiceless in this process is the unborn. And we need to make sure we're doing all we can to protect them."

Some Republicans are already pushing for stricter rhetoric, as a proposed amendment to the Utah Republican Party's platform would have removed the language making exemptions to preserve the life of the mother, or in cases of rape or incest.

The platform amendment was never voted on and the proposal isn't the same as a legislative effort — but it shows at least some support from Utah GOP members to do away with exemptions.

An 'abortion desert' in Western states

With Utah's trigger abortion ban going into effect, women seeking elective abortions will have to travel to neighboring Colorado or Nevada for the treatment. Even for those with the financial means and time off from work to travel, that could prove to be a challenge.

For Utah women, the closest abortion clinic along a major thoroughfare is off I-70 in Glenwood Springs, Colorado, which is about 369 miles from Salt Lake City.

Although a relatively small number of Utah women seek abortions in Colorado — 56 in 2021 — that number will almost certainly increase, and Utah won't be the only state from which women travel to have an abortion.

In the Rocky Mountain states, Utah, Wyoming, North Dakota, South Dakota and Idaho all have trigger laws. Colorado is one of the only states that neither restricts when an abortion can occur nor requires a waiting period after required counseling. Earlier this year, Colorado codified the right to an abortion in state law.

With the Supreme Court ruling handing the question of abortion back to the states, Colorado is now "an island in the middle of an abortion desert," as Kristina Tocce told the Denver Gazette in May.

Planned Parenthood of the Rockies — which encompasses Colorado, New Mexico and southern Nevada — has reportedly been ramping up capacity to accommodate women seeking abortions, but the influx could make it difficult for them to find appointments.

Karrie Galloway, CEO and president of Planned Parenthood Association of Utah, promised that "Planned Parenthood is not going away" and they will continue to "help people plan their families" however they can.

"We promise the people of Utah that we will do whatever is in our power, as we have for the past 50 years, to work within the letter and the spirit of the law, but not giving up on our mission," Galloway said. "We will make sure that we work with anybody who gets to us to make sure that they can get the services they need."

Correction: An earlier version stated that Utah's trigger abortion ban is currently in effect. The law is set to go into effect, but it requires the legislative general counsel to certify the Supreme Court's decision to the Legislative Management Committee. An earlier version also stated the Supreme Court had voted 6-3 in support of overturning Roe v. Wade, but that vote was to uphold Mississippi's restrictive abortion law. Chief Justice John Roberts didn't join his colleagues in the portion of the ruling to overturn Roe.

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