Utah agrees to not enforce the new 18-week abortion ban until courts review it

(Trent Nelson | The Salt Lake Tribune) Karrie Galloway, Planned Parenthood Association of Utah, and Leah Farrell, ACLU of Utah, at a news conference on Utah's pending 18-week abortion ban, at the Utah Capitol in Salt Lake City on Wednesday April 10, 2019.

A federal judge on Thursday barred the state from enforcing Utah’s new abortion restrictions while a case challenging their constitutionality winds its way through the courts.

HB136, passed by the Utah Legislature during the session that ended in March, bans elective abortions after 18 weeks of gestation. The Planned Parenthood Association of Utah and the American Civil Liberties Union of Utah have filed a lawsuit to strike down the law, saying it violates longstanding U.S. Supreme Court precedent.

The office of Utah Attorney General Sean Reyes on Thursday filed a motion agreeing to what’s called a preliminary injunction that would prevent the 18-week ban from taking effect in May. The ACLU and Planned Parenthood welcomed Reyes’ motion and a judge’s decision to issue the injunction.

“This means there will be no disruption in care for the Utah women seeking abortion services at or after 18 weeks,” Karrie Galloway, president and CEO of the Planned Parenthood in Utah, said in a prepared statement. “Every person deserves the right to decide whether and when to become a parent, and we will continue to fight to protect the constitutional rights of Utahns to access safe, legal abortion.”

In their motion, state lawyers acknowledged the “case raises important questions that deserve thoughtful and careful consideration.”

But Reyes also emphasized that his office wasn’t conceding problems with the law.

“Since we expect this case or one like it to be elevated to the United States Supreme Court, this injunction lets both the state and the plaintiffs carefully and thoughtfully build factual records in support of their positions,” he said in a statement. “In the process, we look forward to vigorously defending HB136 and explaining why it constitutionally protects the most vulnerable among us.”

A separate filing submitted by Sim Gill, the Salt Lake County district attorney, said HB136 is “plainly contrary to binding legal precedent” and that enforcing it would be a violation of established federal law.

The new abortion measure creates criminal penalties for physicians who violate the 18-week ban, and Gill is named as a defendant in the case because he theoretically would be tasked with holding these doctors accountable under the new law. The only two Utah clinics that provide abortion services are in Salt Lake County, Gill’s jurisdiction.

A legal filling from Gill’s office argued that Planned Parenthood’s “true quarrel is not with him but with the State of Utah.”

“Any public policy that would require a prosecutor to intervene with a patient and their doctor should require strict adherence to the Constitution to ensure no state action violates the individual liberty of our citizens,” Gill said in a prepared statement. “Our office will not violate anyone’s constitutional rights without absolute clarity.”

The ACLU and Planned Parenthood contend that HB136 is unconstitutional because it goes against case law protecting the right to abortion before a fetus is viable outside the womb. Opinions differ about exactly when this point occurs in a pregnancy, but most experts peg it at around 24 weeks.

Attorneys on both sides of the suit met in federal court Thursday to schedule the case and discuss the injunction.

After the brief hearing, Rep. Cheryl Acton, a West Jordan Republican who sponsored HB136, said she supports the state in agreeing to an injunction.

“Hopefully, by forfeiting the battle we’ll win the war,” she said. “We want to focus not on fighting the injunction ... but on the arguments that we’ll make further down the line.”

Even while pushing HB136 through the Legislature, Acton acknowledged it would almost certainly be challenged in court and could cost the state $1 million to $3 million to defend. However, she says she hopes this law and abortion restrictions under legal challenge elsewhere in the nation will ultimately convince the U.S. Supreme Court to give the states control over the practice.