Abortion care remains available in Utah after state Supreme Court ruling — for now

Utahns will continue to have access to abortion up to 18 weeks of pregnancy, the majority-woman Utah Supreme Court ruled Thursday in a long-awaited decision on whether a near-total ban on such care could take effect.

But in a news conference hours after the decision was published, Riverton Republican Sen. Dan McCay, the sponsor of Utah’s abortion trigger ban, told reporters that he was hoping Utah in the coming months would roll that back to six weeks. McCay said he is asking Gov. Spencer Cox and legislative leadership to call a special session before the end of the year to further adjust Utah’s abortion restrictions.

In a statement to The Salt Lake Tribune, Cox said, “We are still reviewing the opinion and will be having discussions with the attorney general’s office and legislative leadership regarding every possible option to determine the best way to proceed to protect our most vulnerable.”

Kathryn Boyd, the president of Planned Parenthood Association of Utah, said in a call with reporters that she was “not surprised” about McCay’s proposal, and that the organization would be ready to fight it.

The ruling impacts only a previously ordered block on the law and does not determine the final outcome of abortion policy in the Beehive State. The case now goes to a lower court to determine the constitutionality of the trigger law.

Justices Paige Petersen, Diana Hagen and Jill Pohlman joined Associate Chief Justice John Pearce in the opinion, with Chief Justice Matthew Durrant dissenting.

Pearce wrote that Planned Parenthood Association of Utah has the legal standing to bring the case — a question the state raised when challenging the pause on the law — and that a lower court acted within its bounds when it stopped the ban from being enforced.

“The court did not abuse its discretion when it concluded that PPAU and its patients would be irreparably harmed without the injunction,” Pearce wrote. “Likewise, the court did not abuse its discretion when it concluded that the balance of harms tipped in favor of enjoining SB 174 [the trigger ban] while the parties litigate its constitutionality.”

Despite the Utah Legislature’s Republican majority passing the abortion ban in 2020, the law wasn’t active until June 2022, when the U.S. Supreme Court overturned the precedent established in Roe v. Wade that, generally, abortion rights are protected by the federal Constitution.

Almost immediately after the court issued its ruling in Dobbs v. Jackson Women’s Health Organization over two years ago, Planned Parenthood Association of Utah sued to stop Utah’s near-total ban. A judge blocked the law a few days later.

Under the ban, abortion would only be permitted in instances when the mother’s life is at risk or there is a fatal fetal abnormality. In cases of rape or incest, under a separate law passed last year, abortion is also allowed up to 18 weeks.

“While we celebrate this win, we know the fight is not over,” Boyd wrote in a statement, saying the association “looks forward to this unconstitutional law being permanently struck down so that we can continue to provide quality, affordable health care to Utahns, free from political interference.”

The decision comes three weeks after justices ruled against the Legislature in a case challenging its redistricting process, saying it overstepped its authority when it rewrote a 2018 voter-approved ballot initiative that established an independent redistricting process to draw its own congressional maps.

Legislative leaders called that “one of the worst outcomes we have ever seen from the Utah Supreme Court.” Speaker Mike Schultz and President Stuart Adams’ statement on Thursday’s decision echoed frustrations they expressed last month about the court curtailing their authority.

“The U.S. Supreme Court’s landmark Dobbs decision reinstated the authority of our state to regulate abortion policy,” they wrote. “The Utah Legislature thoughtfully acted to ensure the state had a strong policy in place to protect both the unborn and the life of the mother. We are deeply disappointed by the Utah Supreme Court’s ruling today preventing our state’s abortion law from taking effect more than two years after the Dobbs decision.”

Top lawmakers continued, “Through this ruling, the Utah Supreme Court is undermining the constitutional authority of the Legislature to enact laws as elected representatives of the people of Utah.”

In appealing to the Utah Supreme Court, the state argued Planned Parenthood Association of Utah, as an organization, did not have the legal standing to challenge the constitutionality of a law on behalf of individuals who might be forced to remain pregnant under it.

“Planned Parenthood doesn’t know who its future patients would be,” attorney Taylor Meehan told the justices while arguing on the state’s behalf in a hearing last year.

Camila Vega, a staff attorney for Planned Parenthood Federation of America, responded by saying an end to the abortion injunction would not only hurt patients, but would also have negative consequences for Utah’s Planned Parenthood affiliate. Vega argued that Planned Parenthood would suffer injuries to its reputation because it wouldn’t be able to fulfill its mission of providing “comprehensive sexual and reproductive health care services.”

At the crux of the case are several constitutional questions — most prominently, though, whether the Utah Constitution’s equal rights clause protects abortion. While the Supreme Court’s ruling avoided answering those questions, it criticized the state’s approach to them in its opinion.

Article IV Section 1 the Utah Constitution says, “The rights of citizens of the State of Utah to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges.”

The Utah Supreme Court spent hours hearing arguments last August before it issued Thursday’s decision. At that 2023 hearing, Meehan contended that because abortion was restricted when the constitution was ratified in 1895, the court should interpret the equal rights clause to not include abortion rights.

Pearce wrote that the court’s task is not to determine what laws were in place at the time of the Utah Constitution’s ratification, but rather to distinguish what principles Utahns voted to enshrine in the document.

“Failure to distinguish between principles and application of those principles would hold constitutional protections hostage to the prejudices of the 1890s,” the ruling says. “For example, if we failed to distinguish between principles and applications, a party could use Utah’s history to argue that the Utah Constitution provides no protection for interracial marriage.”

In last year’s hearing, Vega pushed back on the state’s reasoning, saying the state’s founders “could not possibly have imagined a world where abortion is safe, legal and routine.”

Planned Parenthood went on to argue that although the Utah Constitution may not include an implicit right to abortion, its extension of equal rights for women cannot be guaranteed without access to abortion. Vega said the state cannot punish women for engaging in intercourse while there can never be an equal ramification for men.

“When women are denied an abortion, they suffer worse, not only physical, mental health outcomes, but also worse social and economic outcomes,” Vega said, adding the state did not dispute that women’s “ability to participate in the workforce is negatively impacted (by the law), that it has ramifications for their existing families and that it impacts their ability to leave an abusive partner.”

Planned Parenthood operates two of three abortion clinics in the state — all but one of which are located in Salt Lake County.

Meehan asserted that Planned Parenthood’s interpretation of equal rights minimizes the strides Utah women have taken to reach their current status in the state.

“The argument seems to be that women have achieved their place in Utah because of their right to abortion,” Meehan said. “And I think that very much is a retelling of the state’s history and an undermining of women’s achievements.”

According to the most recent data published by the state, there were 3,129 abortions in 2021, 2,978 of which were provided to Utah residents. The vast majority told their doctor they were seeking to terminate their pregnancy for socioeconomic reasons — they couldn’t afford to go through with giving birth and caring for a child.

The court’s opinion affirmed that constitutional questions remain, and said that on several occasions, it has recognized and enforced rights that the Utah Constitution does not explicitly list. “We have read these constitutional provisions not as hollow promises but as essential guarantees of important liberties,” it reads.

“It isn’t enough to say that because the Utah Constitution does not use the word abortion, it cannot contain a right that could be infringed by a restriction on the ability to seek an abortion,” Pearce wrote.

Correction • Aug. 1, 9:45 a.m.: This story has been updated to correct that in Utah, abortion is allowed for up to 18 weeks of pregnancy in cases of rape or incest.