What’s next for abortion in Utah?

After the U.S. Supreme Court overturned Roe v. Wade, Utahns flooded the inbox of state Sen. Dan McCay with emails.

McCay, R-Riverton, authored the abortion trigger law that went into effect in Utah after the June 24 ruling on Dobbs v. Jackson. In emails obtained through a public records request, some voters congratulated him, telling him to “Keep up the good work,” while others, like Carla Pruitt of Cottonwood Heights, voiced concerns about how the law might impact them.

Under the subject line, “Abortion is in my medical chart,” Pruitt emailed McCay and dozens of other legislators about her choice to turn to a surgical procedure commonly used in abortions after her doctor broke the “gut-wrenching” news that she had a miscarriage.

Pruitt told The Salt Lake Tribune she continues to email lawmakers, concerned that women going through miscarriages are going to be stuck in the middle of the battle over abortion and prevented from receiving critical health care.

“Where does it end? What’s next?” Pruitt said in an interview.

While McCay’s trigger law is challenged in court, state lawmakers are already drafting a patchwork of abortion bills for next year’s legislative session. And all the while, Utahns from every side of the abortion debate are left wondering: Will there ever be a definitive abortion law in the Beehive State?

The long road to the Utah Supreme Court

While there is not yet a silver bullet case working its way through Utah’s court system, there is a lawsuit that could provide a clearer answer as to what is protected as unenumerated rights under the Utah Constitution.

Utah’s abortion trigger law, Abortion Prohibition Amendments, or SB174, was signed into law by former Gov. Gary Herbert in 2020. It prohibits abortion in all cases, except for a few limited circumstances.

The law was passed with a contingency date of whenever “a court of binding authority has held that a state may prohibit the abortion of an unborn child,” so it went into effect after the June 24 ruling. Utah district court Judge Andrew Stone blocked the law with a two-week restraining order three days later after Planned Parenthood Association of Utah filed a lawsuit arguing that it violates the state’s constitution.

A 2019 law imposing a ban on abortions after 18 weeks has been in place since Stone put a hold on the trigger law.

In July, Stone granted Planned Parenthood’s request for a preliminary injunction. The Utah Attorney General’s office last week asked the Utah Supreme Court for permission to appeal that injunction.

“Planned Parenthood Association of Utah (PPAU) challenges Utah’s renewed abortion policy as violating an alleged implied state constitutional right to abortion,” the petition reads. “And the district court preliminarily enjoined the State from enforcing its law. That extraordinary remedy warrants immediate review by and relief from this Court.”

The Utah Supreme Court had not yet, as of late last week, answered the state’s petition. A vacancy on the court was filled last week by Jill Pohlman, who was confirmed by the Utah Senate on Wednesday night.

Although the attorney general’s office is asking to appeal the injunction, Utah’s high court granting that request alone will not lift the district court’s hold on the state’s abortion ban. Unless the attorney general’s office files a motion to stay the injunction — or halt the lower court’s action — the hold will remain in place and the 18-week ban would be in effect throughout the appeals process.

Whether the state’s highest court takes up or denies the appeal, the case remains in district court, and it will likely be months or longer before Utah sees any kind of resolution. For now, discovery for the district court case is scheduled to continue until September 2023, according to court records. And this could just be the beginning, according to Leslie Francis, a distinguished professor of law and philosophy at the University of Utah who specializes in medical ethics.

The variety of situations that could be considered an abortion in Utah, as well as any abortion-related laws, could prompt further legal and constitutional questions, Francis says.

“I think if the (U.S. Supreme Court) thinks that by overruling a right in Roe, they’ve taken the courts out of the business, they are very seriously wrong,” Francis said.

Although the U.S. Supreme Court’s ruling gives states the ability to make laws prohibiting abortion, the federal government may challenge statutes that it feels infringe on federal laws already in place. In Idaho, the U.S. Justice Department is suing the state to stop a near-total abortion ban from taking effect because it says the law forces hospitals to violate the Emergency Medical Treatment and Labor Act, which requires Medicaid-funded hospitals to provide stabilizing treatment, including abortions, to patients experiencing medical emergencies.

Bill files and the Utah Constitution

While the Justice Department has not targeted any current Utah laws, state lawmakers have already opened files for abortion-related bills that are slated to be considered during the 2023 legislative session.

McCay, the sponsor of the state’s trigger law, has opened a bill file for a proposal to amend the Utah Constitution to address rights relating to abortion. The details of that bill are not yet available on the Legislature’s website, and McCay did not respond to requests for comment.

If passed, an amendment could reduce or expand unenumerated rights and shape what statutes are allowed under the state’s constitution.

A proposed constitutional amendment requires the approval of “two-thirds of all the members elected to each of the two houses” of the Utah Legislature, according to the Utah Constitution.

Then, after advertising the potential change to the public, Utahns would vote on the amendment. The constitution only requires a majority of the voters to approve of the amendment.

An added amendment to the state’s constitution likely still wouldn’t be the end of abortion policy in Utah, according to Teneille Brown, a University of Utah professor who researches the intersection of law, biosciences and medical ethics. The use of abortion procedures is so nuanced that it would be difficult to totally define when people do or do not have the right to access them, she explained.

“It’s hard to imagine that a constitutional amendment could be precise enough to contemplate all of the different ways that this could be challenged,” Brown said.

Other already opened bill files won’t address a person’s right to abortion as a whole in the state, but instead will focus on specific policies to either broaden or limit access to abortion.

State Rep. Jennifer Dailey-Provost, D-Salt Lake City, announced shortly after the Dobbs decision that she would introduce a bill similar to a failed one she sponsored during the 2020 legislative session. It would expand who victims can report their rape to in order to obtain an abortion — Utah’s trigger law requires doctors to verify a rape has been reported to law enforcement.

In July, state Rep. Kera Birkeland, R-Morgan, announced on Twitter that she had opened a file for an opposing bill that prohibits government entities from “setting any procedure for reporting of a violent felony that doesn’t go through proper law enforcement agencies.” She said it will also require law enforcement to investigate reported rapes.

“When a brave survivor comes forward to report, the full weight of the law should be behind them,” Birkeland wrote on Twitter. She did not respond to a recent request for comment.

Dailey-Provost said in an interview with The Tribune that forcing rape victims to report the crime to law enforcement in order to access an abortion can put them at increased risk, whether that’s interactions with law enforcement or an alleged perpetrator.

“The solution to abortion should not be on police reporting, or worrying about why a victim wants to access an abortion,” Dailey-Provost said. “The focus needs to be on letting women make these decisions for themselves.”

A fourth proposal by Salt Lake City Democrat Rep. Angela Romero would remove criminal penalties for health care providers who offer abortion services. She told The Tribune that she doesn’t want doctors, in cases when termination of a pregnancy “needs to happen,” to second guess giving patients that option.

“All medical decisions, and I really want to emphasize this, including abortion, should be between a patient and their health care provider,” Romero said in a roundtable discussion between Latina state lawmakers and Vice President Kamala Harris.

“No one should have to fear prosecution for providing safe, scientifically sound, medical information and services,” she added later.

Leaving it up to Utah voters

Like they would with McCay’s constitutional amendment, voters could also decide on abortion’s future in Utah through a ballot initiative, which would have to follow a lengthy process to get on the ballot.

And it’s difficult to project how Utahns might vote if abortion is included on the ballot.

A 2019 poll conducted by Utah Policy and Y2 Analytics found that 42% of Utahns wanted Roe v. Wade overturned, with some calling for further abortion restrictions, while 58% wanted it to remain in place, with some of them supporting expanded access to abortion.

In a more recent statewide poll, conducted by the Deseret News and the Hinckley Institute of Politics, 46% of Utahns believe abortion should only be legal in cases of rape, incest and threats to the health of the mother, while 10% believed abortion shouldn’t be legal in Utah.

“When something is this contested and really speaks to people’s religious values, it’s really hard to answer it definitively in a law,” Brown said, the law professor. “But if people really fundamentally reject something and think it’s immoral, they’re going to find ways to reduce access to it, even if it’s legal. So the law matters a lot. But maybe it matters less than you realize.”