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SALT LAKE CITY — The state of Utah filed its first substantial response Thursday to a lawsuit filed by Planned Parenthood contesting a 2020 Utah law making abortions illegal except in certain circumstances.
The filing said the law, SB174, is in line with the Utah Constitution, and asks the court to deny Planned Parenthood's request for a preliminary injunction — which if granted, would not have a set ending date and could keep the law from going into effect until the lawsuit works its way through the court system.
Case background
Planned Parenthood filed the lawsuit on June 25, the day after a U.S. Supreme Court ruling overturned Roe v. Wade and Utah's trigger law, SB174, went into effect. The lawsuit argues that the law contradicts the Utah Constitution, which gives rights related to privacy, family planning, bodily integrity and others.
The Utah law was passed and set to go into effect if Roe v. Wade was ever overturned by the U.S. Supreme Court, which occurred on June 24, after the high court determined the U.S. Constitution does not prohibit states from regulating or prohibiting abortion. Utah's law went into effect later that day.
In a hearing in the case on June 27, 3rd District Judge Andrew Stone issued a temporary 14-day restraining order, essentially putting the law on hold less than three days after it went into effect. He determined that Planned Parenthood had sufficiently shown that the impact of taking away the ability to have an abortion outweighed Utah's interest in immediately stopping abortions, citing that doctors performing abortions could face felony charges and women would be denied medical treatment.
Planned Parenthood argued in its request for a protective order and for a temporary injunction that the Utah Constitution provides equal rights to men and women, and outlawing abortions takes away rights from women.
SB174 bans abortions except when necessary to save a woman's life, when a fetus is uniformly diagnosed with a lethal or severe condition, or when the pregnancy is the result of rape or incest. Shortly after the court determined that law could not be in effect, the Utah Legislature put a 2019 law into effect which bans abortions after 18 weeks of a pregnancy.
Utah's response
In its filing contesting the preliminary injunction, the Utah Attorney General's Office and the law firm Consovoy McCarthy argue that abortions had previously been a crime under the Utah Constitution for almost 100 years before the Roe v. Wade decision 50 years ago, and it was never questioned despite charges stemming from Utah's criminal abortion bans. The document said the state constitution is interpreted based on what people would have understood when it was adopted in 1896, and no one at that time would have considered it to allow abortion.
"To rule for (Planned Parenthood), this court would have to accept ... that for more than 75 years, every officer in every branch of state government — legislative, executive, and judicial — openly flouted 10 different provisions of the Constitution by passing, enforcing and upholding abortion laws," the filing states.
Utah argues in its response to Planned Parenthood that the lawsuit does not adequately show it is likely to succeed, a legal standard that must be met to receive a preliminary injunction.
The state also said Planned Parenthood does not have standing required to file the lawsuit, because if the law is in effect, the harm to Planned Parenthood is only a loss of business that the state argues is not irreparable. This would be different if the lawsuit were filed by women who had their access to abortion changed by the law.
The filing said the Utah Constitution has no section where it protects the right to an abortion.
"The Utah Constitution does not expressly protect a right to abortion. That much is clear from the constitution's plain text," the filing says. "Nor does the Utah Constitution protect an implied right to abortion."
Instead, the response said the constitution recognizes unborn children have "inherent and inalienable rights" protected by the state's constitution, and the law is constitutionally sound.
Additionally, the state claims there is a strong public interest among Utahns in SB174, enough that the court should deny the injunction so the law can go back into effect.
"Utah's challenged abortion ban protects a public interest of the highest order — the preservation of human life," the filing states.
The state argued that if Utahns agree with Planned Parenthood and not the law passed by the Utah Legislature, they should vote.
What's next?
On Monday afternoon, the same judge who issued the temporary restraining order taking the law out of effect will hear arguments regarding a preliminary injunction in a virtual hearing.
This hearing will be different from the last one. A higher legal standard for arguments needs to be met in order to receive a preliminary injunction, and attorneys from both sides have had weeks instead of days to look more closely at Utah's laws and the other side's arguments. The judge also scheduled time on Wednesday, July 13, in case there is not enough time to debate the arguments thoroughly on Monday.
At that point, the 14-day temporary restraining order will be set to expire, and either a preliminary injunction will be issued or the law, SB174, will go into effect again.
Regardless, the lawsuit will continue forward. Utah could file a response to the complaint filed by Planned Parenthood initiating the lawsuit. Either side could appeal the decision made on the preliminary injunction to the Utah Court of Appeals.
What is happening nationally?
Utah was not the only state to have a trigger law in place banning all or many abortions if Roe v. Wade was overturned, and many states are also dealing with similar lawsuits.
According to a map on Planned Parenthood's website, abortion is currently illegal in six states and access to abortion is "severely restricted" in 14 states — including Utah.
President Biden took steps on Friday to protect access to abortion in states where similar laws were passed as he faced mounting pressure from fellow Democrats to be more forceful on the subject. He acknowledged there are limitations to what he can do at this point.
"The fastest way to restore Roe is to pass a national law," Biden said. "The challenge is go out and vote."
The executive order he signed is intended to mitigate potential penalties for women seeking abortion, and give instructions to the Departments of Justice and Health and Human Services to push pack on efforts to limit access to abortion medication or to traveling for access to abortion in another state. It directs agencies to educate health care and insurance workers about privacy and what needs to be shared with authorities and asks his staff to find volunteer lawyers to provide legal assistance to women and providers.
He called the U.S. Supreme Court's decision "terrible, extreme" and "totally wrongheaded," and said the decision was not motivated by the U.S. Constitution or history but by political motives.
Contributing: Associated Press
