Abortion access is about to change in Utah. Here’s how.

Utahns might face travel to Colorado, Nevada or New Mexico if abortion access is further restricted in the Beehive State.

If Roe v. Wade is overturned, Utah’s trigger law banning elective abortions could go into effect. And if that happens, Jack Teter feels “furious” and “heartbroken” just thinking about the Utahns who will “have to drive through the night on a mountain pass” to get an abortion.

“I think we’re about to live in a really scary time for people needing access to that health care,” said Teter, regional director of government affairs for Planned Parenthood of the Rocky Mountains, which covers Colorado, New Mexico, southern Nevada and Wyoming.

The U.S. Supreme Court is set to rule in Dobbs v. Jackson Women’s Health Organization before its session ends this summer.

On May 2, Politico repoted a majority of the court privately voted to strike down the landmark abortion rights decision.

“We hold that Roe and Casey must be overruled,” Justice Samuel A. Alito Jr. writes in the document, labeled the “Opinion of the Court,” according to Politico. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

The Dobbs case stems from a 2018 Mississippi law banning abortions after 15 weeks, except in a medical emergency or if there is a severe fetal abnormality.

If Politico’s reporting holds and the Supreme Court overturns Roe v. Wade, two Utah laws — one banning abortions after 18 weeks, and another outlawing the procedure except in limited circumstances — could come into play again, after being put on hold. Women in the Beehive State may also have to travel hundreds of miles to neighboring states to get an abortion.

Planned Parenthood of the Rocky Mountains will be ready, according to Teter.

“If you live in Utah and you need an abortion, come to Colorado, come to Nevada, we will take care of you,” Teter said. “We have patient assistance funds. We can help people with gas money. We can help people with hotels. We can help people pay for their procedures. No one need go without care.”

(Christopher Cherrington | The Salt Lake Tribune)

The organization has already opened its doors to people coming from Texas, Teter said, and they are preparing to do the same for others whose politicians “have made abortion illegal or impossible to access” in their states.

Here’s a look at what could happen in Utah, and the closest places where Utahns could seek abortions if access is further restricted in the Beehive State.

The scope of Supreme Court’s decision

Utah’s trigger law generally banning abortion would go into effect if Roe v. Wade is overturned, according to Leslie Francis, an expert in health law and bioethics at the University of Utah, and Justin Collings, a professor who teaches constitutional law at Brigham Young University.

If the Supreme Court instead upholds Mississippi’s law without overturning Roe, state officials could ask a federal judge to lift the suspension of Utah restrictions on abortions after 18 weeks. Or, Francis and Collings said, Utah lawmakers would probably try to pass a law with Mississippi’s shorter time frame.

Francis, who teaches in the S.J. Quinney College of Law, said she sees “no chance” that the Supreme Court will strike down the Mississippi law.

“Nothing’s impossible. You never say never, but I would be very surprised by that outcome,” said Collings, who teaches in the J. Reuben Clark Law School and agrees with Francis.

Instead, the question is whether or not the justices will take a “dramatic” step and overrule Roe v. Wade, according to Collings. Roe v. Wade is the “famous 1973 case” that said “there is a federal constitutional right to privacy that protects a woman’s right to secure an abortion,” he explained.

Based on previous rulings, here’s how Francis predicts the justices’ opinions will play out:

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan will likely vote to retain both Roe v. Wade and Planned Parenthood v. Casey, another landmark Supreme Court case that shaped abortion laws across the country.

Three of the other justices, Samuel Alito, Clarence Thomas and Neil Gorsuch, will probably “vote not only to overrule Casey, but also to overrule Roe.” Justice Amy Coney Barrett will likely join this group, according to Francis.

Meanwhile, Chief Justice John Roberts — an institutionalist who is concerned about the reputation of the court — is expected to find a compromise, she said, probably saying there should be a balance in state laws between a woman’s right and a state’s compelling interest in protecting potential life.

Roberts needs Justice Brett Kavanaugh to side with him, Francis said. If the chief justice doesn’t get Kavanaugh’s support, “there’s five votes to overrule Roe,” she said.

If the court does take the more gradual approach, “it’s going to raise a lot of questions, ensuring that this is just the first big case of several,” Collings said.

If they say [ending access at] 15 weeks is fine, it is not an undue burden” on a woman’s right to an abortion, some states will try restricting abortions at 12 weeks or six weeks or similar time periods, he said. “That’s going to get challenged and the court will have to, on a case-by-case basis, figure that out.”

That’s why Collings thinks some of the conservative justices on the bench may be inclined to say with the Dobbs case, ”Let’s save ourselves the trouble,” rule “that Roe was wrong the day that it was decided,” and let the states regulate abortion.

Utah’s trigger law

Utah’s trigger law, passed in 2020 as SB174, anticipates states gaining that power.

It becomes effective on the day that the Legislature’s general counsel certifies to its management committee that a binding court has decided “a state may prohibit the abortion of an unborn child at any time during the gestational period, subject to the exceptions enumerated in this bill.”

The general counsel could, potentially, certify the same day as the Supreme Court’s ruling, Collings said.

Francis said she isn’t sure how fast that would happen, though, “particularly if the Supreme Court opinions are difficult or split, and are difficult to parse.” It could take time for the legislative general counsel to analyze the ruling, or there may be a court challenge of whether the ruling supports that certification, she said.

Under Utah’s trigger law, an abortion would only be allowed if:

• It “is necessary to avert the death” or if there is “a serious risk of substantial and irreversible impairment of a major bodily function” of the pregnant woman.

• “Two physicians who practice maternal fetal medicine concur ... that the fetus has a defect that is uniformly diagnosable and uniformly lethal,” or “has a severe brain abnormality that is uniformly diagnosable.”

• The pregnancy was caused by a rape or incest. Before performing an abortion, the physician would have to verify the rape or incest has been reported to law enforcement or the proper authorities.

“I think it’s the government’s role to speak up for those who can’t speak for themselves,” said sponsor Sen. Dan McCay, R-Riverton. “It is one of our primary duties, and the unborn cannot speak,” he said at the time.

The way the trigger law is written, though, raises questions that could hamper it going into effect, according to Francis. For instance, the severe brain abnormality would have to cause the person to “live in a mentally vegetative state,” but the law does not define “mentally vegetative state.” It’s also unclear what “uniformly lethal” means.

“If there’s been one case in a thousand where the fetus survived, that’s not uniformly lethal, I guess,” Francis said. “How about one in a million?”

Those issues would need to be figured out, she said.

Utah’s 18-week abortion ban

Utah’s law banning abortions after 18 weeks — passed in 2019 through HB136 — is among continuing state attempts to narrow access after the 1992 Supreme Court ruling in Planned Parenthood v. Casey.

In Roe, justices had laid out a trimester framework, Collings said, “essentially saying that states could not regulate abortions at all during the first trimester. During the second trimester, they could regulate abortions only in the interest of the mother. And in the third trimester, they could regulate for other reasons, as well.”

The Casey ruling upheld a woman’s right from Roe, Francis said, but ditched the trimester framework. Rather, “the state’s interest in protecting potential life becomes compelling at viability,” she said, “which is sooner than the third trimester.”

The third trimester generally begins about 27 or 28 weeks, while “most experts say that point of viability,” when a fetus can survive outside the womb, “comes around 24 weeks of pregnancy,” The Washington Post reported.

Casey also created the “undue burden standard,” Collings said, saying states cannot impose any regulations “that would constitute an undue burden on a woman’s right to secure an abortion.” This involves situations such as requiring minors to get parental approval before getting an abortion, mandatory waiting periods, or saying a clinic has to have hospital admitting privileges, he said.

The court will now consider whether Mississippi’s 15-week limit can stand — the same time frame originally considered by Rep. Cheryl Acton, R-West Jordan, who sponsored HB136. She changed it to 18 weeks for “strategic reasons,” since a legal challenge was expected.

The 18-week ban “preserves a woman’s right to choose,” Acton said on the House floor in 2019, while allowing the state to “protect ... human life.”

But the 18-week ban, which has the same exemptions as Utah’s trigger law, has been on hold since 2019. The Planned Parenthood Association of Utah and the American Civil Liberties Union of Utah sued, challenging the law’s constitutionality.

Now, attorneys in the case are waiting to figure out how to move forward until after the U.S. Supreme Court rules in Dobbs, court records show.

If Mississippi’s ban after 15 weeks is allowed, then the 18-week ban is likely to be OK, too, according to Francis and Collings.

(Francisco Kjolseth | The Salt Lake Tribune) Utah Rep. Cheryl Acton, R-West Jordan, speaks during an event put on by Abortion-Free Utah in the rotunda of the Utah Capitol on Wed. June 19, 2019.

If abortions are banned, where could Utahns go?

If further restrictions or an outright ban on elective abortions go into effect in the Beehive State, the closest states that have wider abortion access are Colorado, Nevada and New Mexico.

Colorado and New Mexico do not have gestational limits on abortions, while Nevada restricts the procedure after 24 weeks, except in situations to protect the woman’s health. None of the three states has a mandatory waiting period.

The closest cities in Colorado where Utahns could seek an abortion are Glenwood Springs, Cortez and Durango. Fort Collins might actually be faster for Salt Lake City residents to get to by traveling on Interstate 80, according to Teter. Still, that’s a nearly seven-hour drive from Utah’s capitol, spanning more than 450 miles.

“The idea that people in Utah will have to pack a suitcase and gas up the car, or buy a plane ticket, and drive for hours ... in the winter, over a mountain pass ... through wind gusts going through Wyoming,” Teter said, sometimes with their kids in the backseat if they can’t find child care, “I think that’s unconscionably cruel.”

The nearest city in Nevada is Las Vegas — more than six hours and over 400 miles away from Salt Lake City — while the closest destinations in New Mexico are Santa Fe and Albuquerque, which are about 10-hour car rides over roughly 600 miles.

Some of the clinics in these cities only provide medication abortions, which are available up to about 10 weeks of pregnancy. Others also provide in-clinic abortions, which are available later on in pregnancies.

More details about the clinics and the services they provide can be found on maps provided by Planned Parenthood (plannedparenthood.org/abortion-access?) and the National Abortion Federation (prochoice.org/patients/find-a-provider/).

Currently, women in Utah have to drive an average of 29 miles one way to seek an abortion, according to an analysis from the Guttmacher Institute, a pro-choice research organization.

There are 26 states that are certain or likely to ban abortion if the Supreme Court weakens or overturns Roe v. Wade, according to the Institute. Based on those expected bans, that average would change from 29 miles to 276 miles for Utahns, the analysis shows.

And if a 15-week ban is allowed in states, that average drive will be 388 miles for Utahns, the Institute predicts.

“Think about the math. On the West Coast, you’ll have Washington, Oregon, California,” still providing abortions, Teter said. “In the center of the country, Nevada, New Mexico, Colorado, Minnesota, Illinois. And in the Northeast, everything else is going to be gone.”

Many people will not be able to travel to other states for abortions, Teter said, adding that “these laws disproportionately harm marginalized folks in our communities,” including immigrants, people of color ... young people, low-income people or people who work hourly jobs where they can’t get the day off work on a Friday... [to] drive to Colorado to access health care.”

(Brennan Linsley | AP Photo) In this Saturday, Feb. 11, 2017 file photo, abortion-rights counter-protesters hold signs supporting a woman's right to choose abortion, as nearby anti-abortion activists held a rally in front of Planned Parenthood of the Rocky Mountains in Denver.

What are the laws in states surrounding Utah?

Arizona: Arizona’s Republican governor signed a Mississippi-style bill into law in March, banning abortions after 15 weeks, except in a medical emergency. It does not provide exceptions for rape or incest.

Colorado: The state’s Democratic governor signed a bill into law in April, guaranteeing the right to an abortion in state law.

Idaho: Idaho’s Republican governor signed a Texas-style bill into law in March, banning abortions at about six weeks and allowing family members “of the preborn child” to sue abortion providers for at least $20,000 in damages. SB1309 provides exceptions for a medical emergency, rape and incest, but the rape or incest must be reported to law enforcement.

A lawsuit has already been filed to try to block the law, which was set to go into effect later this month.

Idaho also a trigger ban law, passed in 2020, that “would ban all abortions except in cases of rape, incest or to protect the life of the mother,” if the U.S. Supreme Court upends Roe v. Wade, the Associated Press reports.

Nevada: In 1990, Nevada voters approved a referendum that “effectively sealed Roe’s protections into state law,” according to the Reno Gazette-Journal.

New Mexico: Last year, state lawmakers repealed a dormant 1969 law that banned most abortion procedures.

Wyoming: The state’s Republican governor signed a trigger ban bill into law in March that would ban abortions in Wyoming if Roe v. Wade is overturned.

HB92 provides exceptions to protect the life and health of a woman, and in cases of incest and sexual assault.

Becky Jacobs is a Report for America corps member and writes about the status of women in Utah for The Salt Lake Tribune. Your donation to match our RFA grant helps keep her writing stories like this one; please consider making a tax-deductible gift of any amount today by clicking here.