Utah abortion ban bill could lead to prosecution of women who end their pregnancies

(Francisco Kjolseth | Tribune file photo) Utah Senator Dan McCay, R-Riverton, speaks during an event put on by Abortion-Free Utah as it launches a public campaign to end elective abortion in the state of Utah during a press event in the rotunda of the Utah Capitol, June 19, 2019.

An attempt to prohibit all elective abortions in Utah could lead to the criminal prosecution of women who illegally attempt the procedure at home, the measure’s sponsor told colleagues Monday.

The proposal, which would kick in only if the U.S. Supreme Court reverses its stance on abortion, states that terminating a pregnancy illicitly would be a second-degree felony — a crime punishable by up to 15 years in prison and a $10,000 fine.

Under questioning, Sen. Dan McCay, the proposal’s sponsor, acknowledged that these penalties might discourage a woman from seeking medical care if she needs it after a self-administered abortion. However, throughout Monday’s committee hearing, he argued the strict mandate reflects that life is deserving of protection from the moment a fertilized egg implants in the uterus.

“It’s always about whose body you’re protecting and whose care you’re protecting,” said McCay, who explained that illegal abortions are already considered second-degree felonies in Utah. “Most would like to claim that the baby doesn’t exist until it can feel pain or until it’s viable outside the womb. ... I take exception to that.”

The measure, SB174, continued its progress through the Legislature with a favorable vote from the House Health and Human Services Committee on Monday and will head next to the chamber floor for debate. Later in the day, another controversial abortion bill — mandating that women receive an ultrasound before an abortion — also moved through a legislative committee on its way to the Senate floor.

However, a couple of Republican lawmakers voiced reservations about both proposals. Even though he voted for the ultrasound bill, Senate Majority Leader Evan Vickers called its proposed fines of up to $250,000 for noncompliance “heavy-handed” and wondered aloud how many times lawmakers would be asked to prove their anti-abortion bona fides.

And during the hearing on McCay’s bill, Republican Rep. Ray Ward joined two Democrats to cast dissenting votes against the proposal.

Ward, a physician, said countries with similar bans typically experience higher maternal death rates because of unsafe abortions and asked McCay why he believed the outcome would be different in Utah. The senator responded that the United States provides more advanced social services and medical care than in many other countries, a factor that could prevent a spike in maternal deaths in Utah.

“So, if a woman were to try and do an unsafe abortion, her or a friend, with some implement, and she got an infection or punctured the uterus, which one of our social services do you think would make that not create a potentially life-threatening complication for her?” Ward, R-Bountiful, asked.

McCay said it would depend on the woman’s income level and proximity to medical care.

“I understand that feeling and sympathy,” he said. “At the same time, I’m trying to balance the life that’s been lost in utero.”

The senator said the “morning-after pill” wouldn’t fall under the ban, since it works before implantation. And SB174 would contain several exceptions to the general ban on abortion in cases of rape or incest, if the life of the woman is at risk or if there is a severe fetal brain abnormality. However, some testified Monday about other extreme circumstances that wouldn’t fall under one of the listed exemptions.

For instance, a paramedic spoke about encountering an 11-year-old girl who was pregnant, not by rape, but because of consensual sex with her 12-year-old boyfriend. Later, a pediatrician who works with children who have been sexually abused and neglected said the consequences of rape or incest can stretch across a person’s lifetime.

“Women who have been sexually abused, who have been physically abused and neglected, continue to carry risks of unintended pregnancy throughout their lives,” Kristine Campbell testified. “The reality is, is that issues of abortion are complex, and they are not good and bad, right or wrong, black or white. They deserve more than a strict ban."

Anti-abortion advocates spoke about protecting the sanctity of life and about the resources that are available to women with unplanned pregnancies. Maryann Christiansen of the Utah Eagle Forum said it’s critical to “help families begin by not drying up the stream of babies” available for adoption. And there are a number of charities that help women with diapers, baby clothes and other items and services she might need to care for a child, Christiansen said.

McCay said the government also offers a variety of supports to women struggling with an unplanned pregnancy — including food stamps, Medicaid resources and temporary assistance for needy families.

Many of the same advocates showed up at the hearing for Rep. Steve Christiansen’s bill requiring women to undergo an ultrasound before an abortion, even if they don’t want one.

Legislative attorneys have concluded HB364 is “highly likely to be challenged in court” if passed into law and pointed to diverging federal circuit court rulings on similar ultrasound policies in other states. While the 6th Circuit Court found an ultrasound mandate did not unduly hamper a physician’s free speech, the 4th Circuit Court ruled that it was an unconstitutional violation of First Amendment rights. Neither of those courts has jurisdiction over Utah, which is in the 10th District.

“In light of the current circuit split, there is a moderate chance that a court with controlling authority over Utah would side with the 4th Circuit and find that an ultrasound requirement is an unconstitutional burden on a physician’s First Amendment right to free speech,” the legislative analysis states.

Christiansen, R-West Jordan, said his bill would merely arm a woman with vital information before she decides whether to proceed with an abortion.

“Best information leads to best decisions," he said Monday afternoon in the Senate Health and Human Services Committee, which advanced the measure by a 5-2 vote.

The bill states that a physician or technician performing the ultrasound would have to describe “the presence and location of each unborn child in the uterus," display the images so that a woman can see them and make the fetal heartbeat audible to the woman, if possible.

Nothing would prevent a woman from “averting her eyes” from the ultrasound images or asking the physician to lower the volume of the heartbeat, Christiansen said. He modified the legislation to specify that a transabdominal ultrasound would suffice, addressing concerns that the bill might compel a woman to receive a transvaginal ultrasound.

A physician would not be allowed to perform an abortion unless a woman presents a completed form demonstrating she has met the ultrasound requirement. Doctors who disregard the mandate would be liable for fines up to $100,000 for the first offense and $250,000 for each subsequent offense.

Asked by Vickers, R-Cedar City, how he set the proposed fines, Christiansen said he copied language from Kentucky’s ultrasound law. Vickers said he believed the fines were overly punitive, adding that some in the Legislature are growing fatigued of having to repeatedly prove their opposition to abortion.

“I’m not saying I’m opposed to your bill. It’s just that patience runs a little thin when we keep getting asked and asked and asked, ‘Are you pro-life, or aren’t you?’” Vickers said. “Yes, we’re pro-life.”

Utah is already in court defending an 18-week abortion ban approved by the Legislature last year. And, in addition to the bills brought forward this year by McCay and Christiansen, the Legislature has also passed a proposal requiring medical providers to bury or cremate fetal remains after an abortion or miscarriage. That bill is poised to become law if signed by Gov. Gary Herbert.