Gehrke: Why this fight over abortion is cruel, calculating and all-together too real

Robert Gehrke

There is no issue I dislike writing about more than abortion.

Partly because, anatomically, my opinion on the topic doesn’t count for much. But mainly because passions are so high on the issue that reason goes out the window and people often say and do stupid, counterproductive things.

I’m looking at you, Alabama. And Georgia. And now Missouri.

As you’re probably aware, these states have been trying to one-up one another to see which can pass the most ridiculously restrictive abortion law in the country. Each now has passed laws that make it a felony to perform an abortion in almost any circumstance from the time there is a fetal heartbeat onward.

It doesn’t take an Alabama-quality education to recognize that these are not serious attempts to curb or stop abortions. It’s evident from the fact that, under these laws, a girl in Alabama raped and impregnated by a relative would be forced to carry the baby to term. It’s unimaginably cruel, going well beyond the views of most major religions, including The Church of Jesus Christ of Latter-day Saints, and the overwhelming majority of Americans.

These misguided measures are just part of a stampede to the U.S. Supreme Court by zealots anticipating that they’ll be met with an “activist court” eager to undo Roe v. Wade.

It’s calculated, coordinated and a very real possibility.

Utah lawmakers, of course, don’t want to be left out. Last session, they passed a bill banning abortions after 18 weeks of gestation and another one barring abortions conducted solely because the fetus is diagnosed with Down syndrome.

While not as egregious or blatant as Alabama’s law or the rest, Utah’s actions were no less in bad faith.

The constitutional standard that has been applied nationwide is that abortion is legal up to the point of fetal viability and, because of medical advances, that viability window is getting earlier in pregnancy.

So if that was what was motivating the Utah bill — changing the law to reflect the current state of medicine — that would be one thing. But the state acknowledges in its briefs that an 18-week fetus is not viable.

Mandatory educational material prepared by the Utah Department of Health and provided to women who might be seeking an abortion explicitly says that a fetus cannot survive outside the womb before 20 weeks’ gestation. The 10th U.S. Circuit Court of Appeals, which includes Utah, previously struck down a law that sought to ban abortion before 22 weeks.

So Utah’s law, while not as brazen as Alabama’s or Missouri’s, is just as unconstitutional, just as certain to be struck down and just as calculated to try to pick a Supreme Court fight.

It’s because the law is unconstitutional on its face that Salt Lake County District Attorney Sim Gill got national attention for being the first prosecutor in the country to flatly refuse to enforce one of this new flurry of unconstitutional abortion laws.

“Prosecutors have an ethical responsibility to not use their office to knowingly violate someone’s constitutional rights, and that’s what the current state of the law is,” Gill told me last week. “This is not about whether you’re pro-abortion or anti-abortion. It’s about what their constitutional rights are.”

Gill said he would be abdicating his responsibility if he didn’t stand up for his constituents’ rights. His refusal is also important because the only two clinics in Utah that perform abortions are in Salt Lake County.

“Our personal beliefs don’t matter,” Gill said. “When this is criminalized in a way that is facially unconstitutional, it is our ethical duty to say we will not participate in knowingly violating the rights of our citizens.”

It’s not just a political move on his part either. Gill, a Democrat, is not a proponent of capital punishment, for example, but, as a prosecutor, he has had to charge people with crimes that could carry the death penalty. This, he said, is different.

“When there is a constitutional bright line, we don’t have discretion,” he said. “We have a duty not to prosecute that case.”

The Utah law will be put on hold while Planned Parenthood and others are suing over it. The Alabama, Georgia and Missouri laws are sure to be challenged as well.

I don’t think there’s anyone anywhere who thinks more abortions are a good thing. But these bills will do nothing to decrease the frequency. Instead, they’ll divide people over an already divisive issue, and we’ll all end up paying the tab for the grandstanding legislators making pointless statements and using women’s bodies as a means to score cheap political points.