Abortion policy in the Beehive State remains in limbo in the wake of the Supreme Court’s overturn of Roe v. Wade, and lawmakers across the political spectrum are scrambling to shape abortion access in years to come.
While some of the first bills being prepared for the upcoming session give Utahns a glimpse of what abortion policy could look like in the future, a proposal from Rep. Brady Brammer, R-Pleasant Grove, could upend the past.
Brammer’s legislation, Joint Resolution Amending Rules of Civil Procedure on Injunctions, is not directly related to abortion but could end the hold on Utah’s abortion trigger law — which has been in place since June as the Planned Parenthood Association of Utah leads a lawsuit challenging it. Under the trigger law, all abortions are banned with limited exceptions.
The joint resolution, if passed during the 2023 general legislative session, would make it so a judge could not grant an injunction unless the case has a substantial likelihood of success.
In 3rd District Court Judge Andrew Stone’s order granting PPAU’s motion for a preliminary injunction, he wrote that Planned Parenthood “has demonstrated that there are at least serious issues on the merits that should be the subject of further litigation.” If passed, Brammer’s law would end the current hold on the law and force PPAU to prove that its case is likely to succeed for another hold to be put in place.
“This brings the state into conformity with the federal standard for preliminary injunctions,” Brammer said in an email. In response to questions asking whether the bill was prompted by the injunction on the trigger law and how his joint resolution might impact it, Brammer said he had no further comment.
Federal courts do, in fact, have a similar standard when issuing injunctions. Brammer’s resolution doesn’t just change the rules going forward, though, it also changes them retroactively — leaving questions about where the injunction on the trigger law will end up.
“Even if (PPAU) could demonstrate they are likely to prevail on the merits, this would require more legal fees and work,” University of Utah law professor Teneille Brown observed in an email to The Salt Lake Tribune.
Brown added that the bill’s retroactive application would be a win for Republicans whose aim is to diminish the funds available to PPAU, which provides the majority of abortions in the state.
“This wholly unnecessary resolution doesn’t just attack our lawsuit, but it also undermines Utah’s entire judicial process,” PPAU CEO Karrie Galloway said in a statement.
Galloway continued, “It makes clear that some politicians will stop at nothing to deny the people in this state reproductive freedom and access to abortion by subverting longstanding and fundamental principles of our state judiciary to cause havoc in our courts.”
The Utah Attorney General’s office, which is defending the trigger law in court, declined to comment on the resolution.
In November, the Legislature’s Legislative Management Committee voted to make a rare stand against the injunction, agreeing along party lines to submit an amicus brief to the Utah Supreme Court opposing it. Brammer is not a member of that committee.
More abortion bills for the 2023 general session
Rep. Ray Ward, R-Bountiful, and at least four other lawmakers have opened files for abortion-related bills.
As the Abortion Prohibition Amendments — the official title of the state’s trigger law — went into effect in June following the U.S. Supreme Court’s decision that the right to make abortion policy lies with states, one of the criticisms of Utah’s law is its vagueness.
Earlier this year, some women told The Tribune they were wary of getting pregnant because they were unsure whether life-saving efforts, if something were to go wrong, could be unavailable or subject them to prosecution under the new law.
In his Abortion Revisions bill, Ward, who works as a physician outside the Legislature, aims to clear up some of those concerns. While the bill leaves the trigger law and an 18-week ban on abortion that is being enforced in the midst of the injunction in place, it consolidates and changes some of the language in those laws.
“What I think nobody wants have happened is that a doctor is sitting there with a woman who is pregnant and something bad might happen to her health, ... then the doctor doesn’t treat her because the law wasn’t clear,” Ward said in a phone call.
His bill strikes the word “irreversible” from the language outlining the exception to the abortion ban when the mother’s life is at stake. It currently says an abortion may be performed if “a serious risk of substantial and irreversible impairment of a major bodily function of the woman on whom the abortion is performed.”
“I don’t even know what (irreversible) means,” Ward said.
The bill also would change Utah’s legal definition of abortion, which is “the intentional termination or attempted termination of human pregnancy after implantation of a fertilized ovum through a medical procedure carried out by a physician or through a substance used under the direction of a physician,” and replacing the last half with “with the intention of ending the life of the unborn child ... .”
That original definition is confusing, Ward said, because “if you give the woman medicine to induce pregnancy with the purpose of ending the pregnancy, that’s an abortion, which is exactly what it is every time you induce a normal labor.”
Sen. Dan McCay, R-Riverton, the author of the state’s trigger law, did not respond to an email from The Tribune asking whether he agrees with the changes Ward is proposing.
“We appreciate that Rep. Ward, as a medical provider, is working to fix flawed legislation written by lawmakers with zero understanding or interest in protecting women’s reproductive health,” Galloway said in a statement about the bill. “However, we strongly believe that decisions about pregnancy and raising a family should be made by the people most directly affected, not politicians at the statehouse.”
Ward has also introduced a bill this session to expand access to family planning services under Medicaid for people with low income in Utah.
Rep. Rosemary Lesser, D-Ogden, is also proposing legislation that would increase Medicaid offerings for women who are pregnant. The OB-GYN lawmaker has introduced a bill that would widen the eligibility for Medicaid coverage of pregnant women and another that extends the period of time women are covered under Medicaid postpartum.
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