Just weeks after Donald Trump was elected, University of Utah law professor Teneille Brown told students she believed Roe v. Wade would be overturned if the new president succeeded in his plan to “shake up” the U.S. Supreme Court by adding more conservative justices.
“I remember their jaws dropped,” Brown, whose research focuses on medical ethics, said. “They just looked at me like, ‘no way.’ ”
Now that the president is about to announce his pick to replace longtime Justice Anthony Kennedy, observers on both side of the great abortion divide are holding their breath, some with hope; others with dread.
A Ronald Reagan appointee, Kennedy “has clearly reaffirmed the abortion right and the Roe v. Wade framework,” Brown said, making him the linchpin justice on the split court, where four more liberal justices have stood with him against the four conservatives.
Those on the president’s short list, federal judges such as Brett M. Kavanaugh, Raymond Kethledge and Amy Coney Barrett, are expected to be “considerably more conservative” than Kennedy, potentially adding a fifth vote to end Roe v. Wade, which would then allow states to determine for themselves if abortion should be legal or not.
“Everyone’s chattering about it,” said Karrie Galloway, president of the Planned Parenthood Association of Utah. “When they talk about wanting to just reverse settled law, it’s pretty darn scary.“
Mary Taylor, president of Pro-Life Utah, said she is “cautiously optimistic that whomever President Trump nominates will be a little bit stronger on basic human rights, the most fundamental of which is the basic right to life.”
Still, Taylor said she sees the “mass hysteria of the pro-abortion side” as being “a little overdramatic.”
“Even if the stars lined up perfectly, abortion is not going away completely any time soon,” said Taylor. “So, [even] under the best of circumstances, we’ve got a long, long ways to go.”
Utah versus Roe v. Wade
If Trump’s second pick to the Supreme Court — Neil Gorsuch was his first — leads to the demise of Roe, there will be some states chomping at the bit to unravel abortion rights, all at once or piece by piece.
If the past is any guide, Utah will be among them.
The state enacted sweeping legislation in 1991 that would have banned abortion except in cases of rape, incest, or to save the life or health of the mother or to prevent the birth of a child with grave defects.
Ever since that ban was struck down by federal courts, Utah’s Legislature has attempted to curb abortion through piecemeal restrictions.
Last session, lawmakers considered a bill that would have made it illegal for a physician to perform an abortion if the woman’s sole purpose was to terminate a fetus with Down syndrome.
Nonpartisan legislative attorneys determined that proposal had a “high probability of being declared unconstitutional by a court,” citing Roe v. Wade among other rulings.
Rep. Karianne Lisonbee, R-Clearfield, said she intends to refile her bill — which she frames as an anti-discrimination measure — next year.
She said she’s heard of others who may file bills that directly challenge a woman’s right to have an abortion, though she declined to say who.
Sen. Curt Bramble, a Provo Republican who co-sponsored Lisonbee’s bill, acknowledged “I’ve stood on the Senate floor and said if it was possible to overturn Roe v. Wade, I’d sponsor the legislation.”
But he said he didn’t think Utah would take the lead on challenging the landmark ruling.
“I’m not convinced that Roe is going to be overturned anytime soon,” he added.
Leah Torres, a Salt Lake City-based obstetrics and gynecology physician who has been a vocal defender of abortion rights on social media and on Utah’s Capitol Hill, pointed out that conservative states have already been “stripping away more autonomy from half of the population” for years by passing legislation that restricts abortion access.
“I don’t think it [Kennedy’s retirement] will change anything about what states, including the state of Utah, have done or are continuing to try to do, which is, for all intents and purposes, to make abortion inaccessible,” Torres said. “I’m sure that will continue until I suppose our legislative leaders see reason to actually value families and the wellbeing of the matriarchs of those families.”
Among laws passed in recent years by the Utah Legislature are a three-day waiting period to obtain an abortion, a “fetal pain” measure that requires anesthesia for a fetus and another, passed this year, requiring women considering an abortion to first complete an “information module” that discourages the procedure.
The persistent fight over these smaller abortion bills comes during a time where nationally and in Utah abortion rates continue to decline.
Abortion facts and views
In 2016 — the most recent year for which statistics are available for Utah — there were 4.2 abortions for every 1,000 women between the ages of 15 and 44. That is a record low for the state, which has long had one of the lowest rates of pregnancy termination in the country.
A report released in March from the Utah Department of Health shows that abortion rates have been decreasing for decades, plummeting from 10.5 to 6.0 between 1990 and 2000. It has slowly, but steadily declined since.
In terms of raw numbers, there were a total of 2,808 abortions in Utah in 2016, down from 3,444 a decade earlier, according to the health department.
Of all abortions in 2016, including medically induced abortions, 37 percent were between 5 and 6 weeks of gestation and almost 56 percent between 7 and 14 weeks. Only four percent were performed in the 15-20 week period, and barely half a percent, 17 abortions, were performed at or after 21 weeks.
Recent polling shows that Utah voters have negative views toward the procedure.
A Dan Jones & Associates poll conducted in May for Utahpolicy.com questioned 615 “likely Utah voters” and found that the majority, 60 percent, believed abortion should be illegal in all or most cases. Thirty-nine percent said abortion should be legal in all or most cases. The margin of error was plus or minus 4 percentage points.
Judd Nielsen, a research associate with Cicero Group who worked on the poll, noted that “In Utah, there is a very defined stance from the predominant religion” and that “the data reflects that.”
The Church of Jesus Christ of Latter-day Saints’ position is that abortion is “contrary to the will and the commandments of God” but that the procedure may be justified in cases of incest, rape or when the life of the mother or fetus is in serious jeopardy.
Data from 2014 collected by the Pew Research Center showed a much narrower divide in opinion: 51 percent of Utah adults in the poll reported believing abortion should be illegal in all or most cases and 47 percent supported legal abortion options in all or most cases. The poll had a margin error around 7 percentage points, plus or minus.
The U.S. abortion rate has also consistently declined and hit a historic low in 2014, the latest year for which there is data. The rate reached a peak of 29.3 per 1,000 women in 1981 and by 2014, fell to 14.6, according to the policy group Guttmacher Institute. There were 926,200 abortions in the United States in the most recent year of available data.
The U.S. abortion rate in 2014 was actually lower than in 1973, when Roe v. Wade was decided.
Attitudes nationally are more closely divided than in Utah. According to a report this year by Gallup, an even number of Americans, 48 percent, self-identify as pro-choice and pro-life. A decade earlier, 51 percent were pro-choice and 41 percent were pro-life.
Pew Research Center data, on the other hand, shows public attitudes remaining steady for decades with a majority of Americans being consistently pro-abortion rights. Fifty-seven percent of adults said abortion should be legal in all or most cases in 2017, while 40 percent said illegal, according to Pew.
Why have abortions becoming less common?
Laurie Baksh, manager of the maternal and infant health program at the Utah Department of Health, said some explanations she has heard are that women have better access to contraception, reproductive health care and family planning services. But as far as a firm explanation, Baksh said there is no state data that would “give us a definitive answer.”
Other states that have looked at the relationship between abortion rates and access to contraceptive care have found a correlation. A 2012 study published in the journal of Obstetrics & Gynecology tracked 9,256 women in St. Louis, Mo., who had been given their choice of contraceptive method — such as birth control or intrauterine devices — for free, and found “a statistically significant reduction in abortion rates, repeat abortions, and teenage birth rates.”
Heather Stringfellow, vice president of public policy at the Planned Parenthood Association of Utah, believes the sexual health care organization, which provided services for 46,000 Utahns in 2016 deserves some credit.
“To me,” Stringfellow said, “the reason that our rates are so low is that we’re doing better at helping women and families access birth control” and giving women time to plan their pregnancies. “There is no doubt that there is a correlation between the two.”
Taylor of Pro-Life Utah believes there are other factors that contribute to declining abortion rates, including advances in technology. Ultrasounds, for instance, allow clear pictures during prenatal visits that could influence abortion attitudes. “I mean people are literally able to see inside the womb now,” she said.
Additionally, Taylor said, teenagers are generally having less sex, which was the one of the conclusions of the CDC’s Youth Risk Behavior Surveillance nationwide 2017 report. “And that, of course, is definitely going to affect the abortion rate,” Taylor said.
Stringfellow noted that Utah opts out of questions in the youth-risk behavior survey that deal with sexual activity, so there is no confirmation Utah follows this national trend.
The decline can’t be credited to one of the most significant abortion-restriction laws enacted in Utah in recent years: the 72-hour waiting period, Stringfellow maintained. A University of California, San Francisco study found that only an estimated two percent of women who were sure of their decision before attending an information session changed their minds during the mandatory waiting period.
Other factors could play a role, Stringfellow said, like news stories that try “to drive negative opinions about a woman’s right to choose.”
In 2015, for example, a series of secretly recorded, highly edited videos were released accusing Planned Parenthood of illegally profiting off the sale of fetal tissue, creating immense public controversy. Utah Gov. Gary Herbert halted federal funding transfers to the organization — a decision that was overturned by the courts, which found no wrongdoing by Planned Parenthood. In Texas, a criminal investigation ended with no charges against the nonprofit, but indictments against two activists in the anti-abortion group that created the videos.
Generally speaking, Stringfellow added, “there’s a lot of misinformation out there” on the subject of abortion. Working with legislators on Capitol Hill, Stringfellow said she has been shocked by some the questions health experts get asked, from misunderstandings about what abortion is to what goes into a woman’s decision-making. At a time when “rhetoric is thick” and there is “very emotional messaging” being relayed, it can be “very difficult to try to determine what is really happening,” Stringfellow said.
“We know it’s a polarizing issue,” Stringfellow said. “We know it’s a political issue.”
Ultimately, Planned Parenthood’s goal is to help women “receive the care they need,” Stringfellow said, and to reduce the number of unwanted pregnancies.
In many respects, this is a similar mission to that of Taylor, who supports contraceptive measures and said “a woman who is sexually active and doesn’t want children should definitely consider birth control,” so long as they recognize, she added, “that there is no such thing as a 100 percent effective birth control.”
“Our concern is the termination of a life,” Taylor said.
If Roe v. Wade were overturned, four states already have so-called “trigger laws” in place designed to immediately outlaw abortion. Utah is not one of them.
Bramble, the outspoken anti-abortion state senator, said trying to second guess the Supreme Court “is speculative to begin with.” But if the legality of abortion were returned to states to decide, he suspects Utah would largely restore the framework of the 1991 law that was struck down by the courts.
That would mean a ban on abortions except in the case of rape, incest, to protect the life or health of the mother or to prevent the birth of a child with grave defects, essentially the position of the LDS Church.
“I think that would be a reasonable probability,” Bramble said. “I would expect those exceptions would survive in Utah.”
Taylor W. Anderson contributed to this report.