The Utah Supreme Court handed down a decision in an ongoing case on the state’s law banning elective abortions — it allowed an injunction blocking the law to continue.
To get perspective on what this ruling means, the Deseret News spoke with constitutional scholar Bill Duncan, a fellow at the Sutherland Institute who has a long history of submitting briefs on constitutional issues, especially religious liberty.
“Although this isn’t a final decision and the court certainly can come and come back to what I think is the correct decision, which is that the Utah Constitution does not create a novel right to abortion, the decision is pretty concerning,” said Duncan.
Duncan said this opinion does not change the status quo: The state has not been able to enforce the law for years. Abortion is legal in the state up to 18 weeks. Sen. Dan McCay, R-Riverton, floated the idea of prohibiting abortion after six weeks while the Legislature waits for the courts to rule on the ultimate constitutionality of the trigger law.
So, what is next?
It is likely the district court judge will restart the case and both parties will bring their arguments forward, he said. He explained there will likely be a motion to dismiss, and it will eventually come back to the Utah Supreme Court to make a decision about whether or not the state constitution does recognize a new right to abortion.
The majority opinion made clear that four Utah Supreme Court justices were “open to the idea that there could be unwritten principles in the Constitution that could justify them in making policy decisions that are at odds with the entire history of the state.”
Many other courts have tried to walk away from behaving that way, said Duncan. While the court did not rule on the merits of the claims, he said the messaging was wrong.
“I think they were wrong to telegraph that they’re willing to consider what they call principles in the Constitution that would allow them to make policy decisions about issues of abortion, even though those are clearly not protected in the text or in the historical application of the Constitution,” said Duncan.
By doing so, said Duncan, the court stepped into an area that really belongs to lawmakers. The Utah Constitution is silent on the issue of abortion and Utah has had laws against abortion, so the principles the court could point toward are outside the Constitution.
Ideals like bodily autonomy and agency are important, said Duncan. “But under our constitutional system, we typically have appropriately allowed the Legislature to decide how they apply in specific circumstances rather than giving the courts the ability to find things in the Constitution that are not there, but to say that they’re inferred by the principle behind the law.”
On behalf of the Sutherland Institute, Duncan had filed an amicus brief, making the argument no part of the Utah Constitution prevents the state from passing a law to protect unborn children.
While Planned Parenthood Association of Utah argued ideals around religious liberty should prevent the state from being able to implement the law, Duncan said it was not the case.
“Religious liberty is a critical constitutional guarantee but trying to shoehorn a difference opinion on policy as a religious freedom claim trivializes that guarantee,” wrote Duncan in the brief.
Duncan said the claim a law banning abortion would infringe on religious liberty does not work because when it is flipped on its head — and applied in the reverse direction to people whose religious beliefs are life beginning at various stages — the logic does not hold.
“No Utah case has held that similarity between religious teaching and state legislation creates an established religion for the state or effects a union of church and state,” wrote Duncan in the brief. “Nor has any of this court’s decisions suggested that such a similarity by itself constitutes evidence of domination or interference by any church.”
One of the disagreements between the majority opinion of the court and Chief Justice Matthew Durrant was over whether or not Planned Parenthood Association of Utah should be able to bring a suit forward.
Duncan said typically the court only grants standing if a person is directly impacted by a law. When the court said Planned Parenthood Association of Utah had standing, he said it was broader than usual.
In other cases, Duncan said it would be expected for a patient to directly sue rather than the organization.
Rep. Andrew Stoddard, D-Sandy, who has legal experience as a Murray City prosecutor, said in a statement the ruling was a check on the Republican supermajority.
“This ruling highlights the importance of an independent judiciary in protecting individual rights and ensures, for now, that women in Utah have control over their personal health decisions,” said Stoddard.
The Deseret News printed other reactions from politicians and leaders across the political spectrum in a previous story.
