Sen. Mike Lee asks Supreme Court to abandon Roe, which would trigger an abortion ban in Utah

The justices are expected to rule in 2022 on a Mississippi case, giving the more conservative court its first real chance to scale back abortion rights.

(AP Photo/Susan Walsh, Pool, File) - In this Nov. 10, 2020, file photo, Sen. Mike Lee, R-Utah, speaks during a Senate Judiciary Committee hearing on Capitol Hill in Washington.

Sen. Mike Lee is pressing the Supreme Court to reconsider its landmark abortion rulings and instead let states pass their own laws.

If the justices were to side with him, it would trigger a now-dormant Utah law, banning all abortions except in cases of rape, incest and to protect the health of the mother.

Lee, R-Utah, joined two Republican colleagues — Sens. Ted Cruz of Texas and Josh Hawley of Missouri — in filing a “friend of the court” brief Monday in a major abortion case the Supreme Court soon will hear. That case involves a Mississippi abortion ban after the 15th week of pregnancy. The high court, which now has a conservative majority, is expected to rule on this case in 2022.

Lee, Cruz and Hawley have all long opposed national abortion rights. They argue the Supreme Court’s rulings in Roe v. Wade and Planned Parenthood v. Casey are not workable and therefore do not deserve to be preserved solely because they have been the law for decades. They specifically focus on the “undue burden” standard that the court put into place in 1992. Essentially restrictions in states shouldn’t put an undue burden on women seeking an abortion. Ever since, the court has received cases trying to determine what exactly meets the threshold of an undue burden.

The senators say that standard is “murky,” “untenable” and “unworkable.” Their preferred outcome is to have no national right to an abortion. That would mean that each state would set its own rules.

Utah’s state lawmakers have prepared for this potential outcome.

In 2020, the Utah Legislature passed a bill that takes effect only if the Supreme Court reverses its decision on Roe. If that happens, Utah would ban all elective abortions at any stage of pregnancy.

State Sen. Dan McCay, R-Riverton, said his measure was intended in part to send a message to Supreme Court justices.

“It is important for the Supreme Court, it is important for the rest of the country to see that there are divided opinions about the way this ought to be dealt with,” McCay said when his bill passed the Senate. “I really am hopeful that in the next few years that they strike it down.”

He also said, “It’s the government’s role to speak up for those who can’t speak for themselves. It is one of our primary duties, and the unborn cannot speak.”

His bill was opposed by Utah’s minority Democrats, including Sen. Kathleen Riebe, D-Cottonwood Heights, who said at the time, “We are taking away the rights of women. We are saying that they are not responsible for their bodies.”

On Monday, Katie Matheson with the Alliance for a Better Utah, a progressive group, criticized Lee’s position on Twitter, saying, “Imagine the pain of a woman whose pregnancy is not viable & who can’t meet the high requirements to terminate. Imagine the suffering. Mike Lee is not imaginative enough to consider addressing this issue outside the lens of punitive action against half the population.”

Under Utah’s current law, a woman must complete a 72-hour waiting period and watch an information module that says the state prefers childbirth to abortion before being allowed to have the procedure.