Estimated read time: 9-10 minutes
SALT LAKE CITY — A Utah judge granted a more extensive ban on Utah's abortion trigger law Monday while a lawsuit from Planned Parenthood moves through the courts.
Third District Judge Andrew Stone issued a preliminary injunction and said Planned Parenthood successfully showed that women who are seeking abortions may be harmed by seeking treatment out of the state or resorting to unsafe means.
He said this decision was based on keeping the status quo before making a significant change to the law, and he is not making a ruling on the claims presented by either party.
"This law was intended to affect a radical change in existing law. … When you're talking about a seismic change in women's health treatment, it's prudent to look before you leap," Stone said.
The law, SB174, was passed by the Utah Legislature in 2020 to go into effect should the U.S. Supreme Court ever overturn Roe V. Wade. When that happened, Planned Parenthood filed a lawsuit against the new law that bans abortions in Utah except in cases where the mom or baby has serious universally diagnosable health concerns or in cases of rape or incest.
The judge said there are clearly multiple serious constitutional issues to consider in this lawsuit. Stone also said Planned Parenthood showed that without an injunction, there would be irreparable harm.
"The main effect of (not granting an injunction) would be to stop abortions in the first 18 weeks of pregnancy," he said, referring to a 2019 Utah law banning elective abortions after 18 weeks with a few exceptions. That law went into effect late last month after Stone issued a temporary restraining order against SB174.
"But without safe access to those abortions, women are going to be delaying treatment, which increases their health risk," Stone said. "Some women will likely resort to unsafe and illegal methods, which involve risks to not only the woman but obviously any life, or potential life, she's carrying. Both physical and mental health of women denied legal access to medically safe abortions is threatened here. And plaintiffs' and other providers' ability to provide medically appropriate care to women is harmed. That's irreparable harm."
The judge said harm to the state is rooted in moral conviction and he respects people who have that view. However, he said many women under the ban will likely still get an abortion in another state or through an unsafe method.
"What I don't have any clear picture of is whether this act which will cause harm will actually prevent the harm that it was meant to prevent," Stone said.
He said he is tasked with considering a known harm to women seeking an abortion against an unknown harm of potential fetal lives lost.
After the ruling, Tyler Green, a lawyer who spoke on behalf of the state of Utah and individually named defendants in the hearing, hinted that the state may seek a stay or appeal on the injunction. Stone said he would not discourage an appeal.
"We all know that this is going to head up there, and that's really who needs to ultimately make this constitutional determination — it's the (Utah) Supreme Court," Stone said.
Planned Parenthood requested the preliminary injunction after its lawsuit claims Utah's SB174 violates the Utah Constitution. Stone previously granted a temporary order taking the law out of effect for 14 days. Those 14 days would have come to an end on Monday.
The Utah law will now indefinitely be on hold while the lawsuit proceeds or an appeal is granted.
In Monday's hearing, Planned Parenthood had the burden to show that its case merits granting a preliminary injunction — which means the court had to find:
- Either Planned Parenthood's lawsuit is likely to succeed or there are issues that merit further litigation.
- Planned Parenthood will be irreparably harmed if the law goes into effect.
- More harm will be caused to Planned Parenthood by the law than would be caused to Utah if the law does not go into place.
- A preliminary injunction would not go against the public interest.
Stone considered each of these points and determined that Planned Parenthood presented sufficient arguments to show its arguments met the standard for a preliminary injunction; specifically, he determined there is a need to solve the constitutional issues presented in the lawsuit before altering the status quo as SB174 would do.
Utah, in its response to Planned Parenthood's request for a preliminary injunction, argued that SB174 aligns with the Utah Constitution, which recognizes rights for unborn children.
"The Utah Constitution does not expressly protect a right to abortion. That much is clear from the Constitution's plain text," a brief filed last week states. "Nor does the Utah Constitution protect an implied right to abortion."
Stone said some provisions of the Utah Constitution cited in the lawsuit have been altered since statehood, and asked whether he should consider what voters understood at the time of the amendment or when the provision was added to the Constitution. Green said in 2020, when a constitutional amendment was passed changing some of the section cited in the lawsuit, voters were told the change "does not alter the substance or meaning of any part of the Utah Constitution." Because of this, he said the initial intent matters for this lawsuit, not recent voters.
The state also argued that the abortion ban in SB174 has a strong public interest for preserving human life.
Green said the Utah Legislature has made it clear there is a strong public interest in protecting both human life and potential human life, which he called an interest "of the highest order," and said Utah also has an interest in enforcing its law, including the abortion ban.
He argued during the hearing that a preliminary injunction against SB174 could lead to further bans on abortion laws, and asked the judge to consider what could happen to Utah's current law banning abortions after 18 weeks of pregnancy. He wondered if SB174 is stayed, or later found to be unconstitutional, where a line would be drawn under Utah's current constitution.
"There's some serious line-drawing problems here ... when we're talking about what the general public understood," Green said.
Green said that a legislature is allowed to make laws within the state's constitution, and the public's recourse for laws that it does not like is not a lawsuit and a preliminary injunction, but voting those politicians out of office.
"The Legislature can make decisions as it sees fit to make decisions to regulate whatever is within the scope of the police power, as long as it's not infringing on a constitutional right," Green said.
Planned Parenthood's arguments
Planned Parenthood's attorney Julie Murray argued that SB174 breaches constitutional provisions providing the right to determine one's own family composition, equal rights to men and women, the right to bodily autonomy and the right to privacy.
Murray claimed the abortion ban would discriminate between men and women, pregnant women who wish to get an abortion and who wish to carry their baby full-term, and women who want an abortion and meet requirements for an abortion in the law and women who want an abortion and do not.
She spoke about each constitutional provision at the hearing, and noted that the state's written brief did not refute many of their claims.
"The state says nothing about the long-term financial, social and emotional impact of the ban, which will disproportionately fall on the shoulders of Utahns of color and families with low incomes," Murray said. "And it doesn't deny that only a tiny share of pregnant people seeking abortion in Utah would meet the exceptions to the ban."
Instead, Murray said, Utah's legal brief simply says the harms that the plaintiffs claim are "constitutionally irrelevant."
She said there are 10 patients scheduled for an abortion on Tuesday and over 200 people who would be turned away from abortion care over the next month if the Utah law were allowed to go into effect. Murray also said 56% of women seeking abortion report food or housing insecurity, and half of women seeking abortion in Utah have children, and not having access to an abortion means those children will receive less resources and attention from their mothers.
The abortion ban would require women who are pregnant because of a rape to lose privacy and require women to face unnecessary health risks, she argued.
"By enacting the ban, the state has prevented pregnant people from ending their pregnancies, forcing them to submit to roughly nine months of dramatic physical transformation, implicating the most personal aspects of their lives and identities, and putting them at increased physical risks, including death, without their consent," Murray said.
She said Utah has multiple other laws that help it protect fetal life, and "alternatives to the criminal abortion ban" like addressing maternal mortality and giving aid to people with unwanted pregnancies like paid leave or income support. She said an abortion ban would not do anything to help these people.
Although the state of Utah argued Planned Parenthood does not have standing to file the lawsuit and it should instead be filed by women seeking abortion, Murray argued as one of two outpatient abortion providers in the state that it does have standing.
"I think it is unquestionable, not only that Planned Parenthood is an appropriate party, but in fact, is the best party to bring this suit, given the stakes for it and its doctors, and the fact that it is directly regulated by the statute at hand," Murray said.
Stone agreed that Planned Parenthood has standing, and added women who are seeking abortion would not consider filing a lawsuit the most efficient way to get relief, but Planned Parenthood could represent women in that group collectively.
Karrie Galloway, president and CEO of Planned Parenthood Association of Utah, said in a statement after the ruling, "We're grateful that for now, abortion services remain legal and available in Utah. The past few weeks since the Supreme Court's ruling have been terrifying and confusing for our patients and providers across the state. But let me be very clear about one thing: Abortion is legal and available in Utah up to 18 weeks. And Planned Parenthood will continue to fight to make sure it stays that way."
The Utah Attorney General's Office declined to make a statement about Monday's ruling.
A statement from Pro-Life Utah, sent by its president, Mary Taylor, said it is "horrified" that the injunction was granted.
"The irreparable harm to unborn babies was completely ignored. Thousands of babies would have been protected had the law been allowed to go into effect, but will now be killed as a result of this decision while we wait for the case to be litigated. Not only this, but the 18-week ban and the post-viability ban could also be put at risk.
"We will continue to work to save women from the trauma of abortion and babies from the horrific death perpetuated daily by Planned Parenthood and other abortion providers," Pro-Life Utah said.