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SALT LAKE CITY — The Utah Supreme Court is now considering Utah's "trigger law," which bans abortion in the state except under specific circumstances like rape, incest or the mother's health.
Attorneys argued before five Utah justices for four hours on Tuesday.
Third District Judge Andrew Stone issued a preliminary injunction in a lawsuit filed against SB174 on July 11, 2022, shortly after the U.S. Supreme Court overturned Roe v. Wade. SB174 was the trigger allowing Utah's abortion law to go into effect.
"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.
Now, that preliminary injunction will either be upheld or reversed by the Utah Supreme Court. The ruling will determine whether abortion prior to 18 weeks of pregnancy will be legal in Utah while the lawsuit against the trigger law is considered in 3rd District Court.
In addition to the trigger law, a preliminary injunction in the same case halts another law passed by the Utah Legislature after the Supreme Court decision from going into effect. HB467 would require abortions to happen only in hospitals and not clinics. Planned Parenthood argues that because so few abortions happen in hospitals, this law would essentially ban abortions as well.
State's arguments
Taylor Meehan, the attorney who argued on behalf of Utah Tuesday, said that this is not a debate that should be in the courts; it should be in the Legislature, a body that responds to people. She asked the court to vacate the preliminary injunction.
She said thousands of abortions have been performed in Utah over the last year and 28 days, the time period since Planned Parenthood asked the courts to determine that abortion was a right "so fundamental that the people's hands are tied." She said the history is "very, very compelling."
Meehan asked the courts to vacate the preliminary injunction "with all deliberate speed."
The attorney said abortion is an area that is not spelled out in the Utah Constitution, so the Legislature and elected officials should exercise their own judgment. She asked the justices to consider common law meaning and said the original meaning of the constitution is what's important. Considering the unbroken history in Utah law of eliminating abortion before Roe v. Wade should be part of the court's approach, she added.
"This case is the Norman Rockwell; it is not the Jackson Pollock," she said, referring to the two well-known artists. Rockwell, being known for simple paintings of American life, while Pollock known for his abstract expressionist artwork.
Although the Utah Constitution accounts for unenumerated rights, she said in order for those rights to exist there needs to be some history to support them.
Meehan said Utah has a history of abortion laws that were prosecuted, and doctors were tasked with defending themselves against charges. They defended themselves not by fighting the law, but by citing evidence issues in the case or other statues.
"There's never an utterance, in those cases, of unconstitutionality," she said.
Meehan said under Utah's law, the lives of unborn individuals are recognized, they are valuable, and are worth protecting.
"The Legislature has done the hard work of balancing all of those issues," she said.
She told the justices that no matter what path they take in their analysis, they will have to confront the right to abortion. She said Planned Parenthood has not been able to show that the Utah Constitution supports abortion and have pointed only to hypotheticals. Therefore, there is not enough support to continue the preliminary injunction, she argued.
"There's no fundamental constitutional right to permanently end the right of an unborn child," she said.
Meehan said if the court simply rules that Planned Parenthood did not have legal standing to bring the case forward but not address the other issues, they would simply find an individual plaintiff who did have standing and start the process of a preliminary injunction all over again. She asked the court not to rule just on standing and give some constitutional analysis to avoid the case coming to back to the Utah Supreme Court on a different preliminary injunction.
Planned Parenthood's arguments
Camila Vega, an attorney with the Planned Parenthood Federation of America, said the injunction is currently "shielding families of Utah from great harm." She asked the court to support the injunction and said the 3rd District Court did not abuse its discretion when granting the injunction.
"Equality today for the women of Utah requires access to abortion," she said.
She said the Utah Constitution should enshrine principles, not the way principles are applied, and talked about principles of bodily integrity, equality and privacy. She said abortion is necessary for women to have the rights provided in Utah's Constitution.
Vega said the founders of Utah included a "unique, broad and affirmative right to equality" in the constitution and clearly thought sexes should be equal. She said the document is "aspirational" and the laws are trying to get closer to those aspirations of equality.
She said if women are forced to use their bodies to bear children, then they do not have equal rights. Pregnancy comes with physical and mental health challenges, culminating in labor — and pregnancy is the only scenario where people are told they have to undergo a medical procedure.
"We have a changed circumstance here. Our founders could not possibly have imagined a world where abortion is safe, legal and routine," Vega said.
She said for the last 50 years there has been safe, accessible abortion in Utah, and the court should consider that.
"We don't need to pretend that Roe v. Wade didn't happen here," Vega said.
She said women do not choose to be pregnant just by choosing to have sexual intercourse, and one sex should not be punished more from intercourse than the other.
Vega also said not having access to abortion inhibits women from becoming equal in society, leads to worse social and economic outcomes and can impact a woman's ability to leave when a partner is abusive.
She said the most important thing in a preliminary injunction is to "preserve the status quo," and the status quo is allowing abortions.
Judicial questions
Although attorneys are often given a limited amount of time to present their arguments, Chief Justice Matthew B. Durrant made it clear before arguments began that the judges were going to ask questions until they no longer had any to ensure that they don't have any outstanding questions when considering the case.
"We want to be fair to you," he said. "We want to be fair to ourselves."
After the argument concluded, he thanked both attorneys for their briefing and the legal work that went into the case on both sides of the debate.
Questions from Justice John Pearce led to arguments about interracial marriage, which was not generally approved of when the Utah Constitution was ratified but was later found to be unconstitutional, and how it could relate to this debate.
Justice Diana Hagen brought up hypothetical laws about elective medical procedures and medical suicide to ask how the arguments in this case would apply in those circumstances. She also asked about one case in Utah that directly addressed abortion, which evaluated the U.S. Constitution and then said Utah's could be interpreted the same way and at the time both protected a right to abortion — she asked if this case would be overtaken by the more recent U.S. Supreme Court decision overturning Roe v. Wade.
Justice Paige Petersen pointed out that women were not among the Utahns who ratified the Utah Constitution; they were in the audience but were not the delegates. She said although women voted while Utah was a territory, the federal government took that right away when Utah became a state. She asked Meehan how it would be possible to do a public meaning analysis without knowing what abortion meant to women at the time.
Meehan said women had an "unprecedented voice" in Utah's Constitution even though they did not ratify it.
Petersen also asked for both attorneys' comments on a brief filed by obstetricians and gynecologists, which discusses pregnant women who want a healthy baby but have serious medical complications and how that doesn't meet the standards in Utah's law. Meehan said the Legislature should be allowed to weigh those harms, and Vega said these women are an example of a third party in their lawsuit.
