Attorneys for the Utah Legislature say a bill banning abortions after 15 weeks would probably be found unconstitutional

(Leah Hogsten | The Salt Lake Tribune) In this Tuesday, Aug. 25, 2015 file photo, Whitney Duhaime, center, shares her opinions with an anti-abortion protester as the Planned Parenthood Action Council holds a community rally at the state Capitol in Salt Lake City. Planned Parenthood Association of Utah CEO Karrie Galloway says the demonstration is a protest against Gov. Gary Herbert's decision to stop disbursing federal money to Planned Parenthood.

A Utah bill that would ban most abortions after 15 weeks would probably fail to pass constitutional muster, according to legislative attorneys, and could cost the state upward of $2 million to defend in court.

The legislation sponsored by Rep. Cheryl Acton, R-West Jordan, would make the state’s abortion law one of the most restrictive in the nation and is similar to a Mississippi bill that has already been overturned in federal court. Acton’s version also would have a “high probability of being declared unconstitutional,” stated a Wednesday memo by the Office of Legislative Research and General Counsel.

If the measure does face legal challenge, Acton believes its only chance of survival would be to push an appeal up to the U.S. Supreme Court.

At this point, there are too many unknowns to predict the potential cost of litigating Acton’s bill, HB136, according to the Utah Attorney General’s Office.

“But $2 million would be a conservative estimate to run an issue up to the Supreme Court of the United States,” said Ric Cantrell, an attorney general’s office spokesman.

During a Wednesday news conference, Acton argued the legal battle is worth fighting in a state with one of the nation’s highest fertility rates.

“It’s one thing to be told no by the courts, and it’s an entirely other thing to tell ourselves no because we lack the will to fight injustice,” Acton said. “We should be leading out on this issue. We should be at the front demanding safety for women and protections for the unborn.”

Courts have held that states can regulate abortion but cannot ban procedures occurring before a fetus could survive outside the womb, the legislative analysis stated. This point of viability has changed with medical advancement, but a judge in the Mississippi ruling cited evidence that places it around 23 or 24 weeks of gestation.

Based on judicial precedent, “there is a high probability that the court would find that the proposed legislation imposes an unconstitutional burden on a woman’s right to a nontherapeutic previability abortion,” the legislative memo said of Acton’s bill.

The staff analysis was prepared at the request of Rep. Karen Kwan, who is concerned that the measure would ran afoul of constitutional law and could leave the state with hefty legal fees. “I don’t feel that our taxpayers should have to bear that cost when we already know it’s going to have some legal challenges,” Kwan, D-Murray, said Wednesday.

Utah’s existing law forbids abortions after viability, but Acton objects that this standard allows the procedure well into the second trimester. By then, she says, an abortion can cause greater physical and emotional trauma to a woman and can involve a surgical procedure that she finds objectionable.

While her bill would generally ban abortions after 15 weeks, it includes exemptions to allow them in cases of rape or incest, if the life of the woman is endangered or if the fetus has a lethal defect. The Utah Department of Health reports that there were 2,759 in-state abortions by Utah residents in 2017, with 150 of them occurring after 15 weeks gestation.

Pro-Life Utah and the Utah Eagle Forum have encouraged Acton to sponsor the bill, she said, and she agreed after digging into the issues surrounding it.

The Legislature in the upcoming session will debate at least one other abortion bill; Rep. Karianne Lisonbee, R-Clearfield, is again sponsoring a measure to prohibit abortions when a woman is seeking it solely because of a Down syndrome diagnosis.

Legislative attorneys last year warned that Lisonbee’s bill, which passed the Utah House but died in the Senate, would be deemed unconstitutional by the courts.