Proposal that could restore Utah abortion ban advances in committee

Representatives from Utah courts, the Salt Lake County D.A.’s office, the Utah Medical Association and the American Civil Liberties Union came to voice concerns about the joint resolution.

(Emily Anderson Stern | The Salt Lake Tribune) Rep. Brady Brammer, R-Pleasant Grove, speaks to the House Judiciary Committee about Joint Resolution 2 in the Senate Building at the Capitol, on Wednesday, Jan. 18, 2023. The legislation would likely end a hold on Utah's abortion trigger law by amending court rules to change the standards judges have to meet when issuing an injunction.

Lawmakers voted Wednesday to advance a joint resolution that would change court rules to effectively end an injunction on Utah’s abortion trigger law, despite a dozen citizens and attorneys showing up to speak against it.

The proposal, put forward by Rep. Brady Brammer, R-Pleasant Grove, aims to retroactively eliminate a judge’s ability to grant a preliminary injunction unless a case has a “substantial likelihood” of success. Both Democrats on the House Judiciary Committee voted against the measure, and Republican Reps. Judy Rohner and Christine Watkins — of West Valley City and Price, respectively — joined them.

Abortion providers in Utah have been allowed to continue operating since 3rd District Judge Andrew Stone in July granted Planned Parenthood Association of Utah’s request for a preliminary injunction in its case challenging the state’s abortion trigger law.

In Stone’s order at the time, which put the trigger law on hold, 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 make it so judges cannot use that basis to grant such a preliminary injunction. Under a substitution approved by the committee, it would also allow parties — such as the Utah attorney general’s office, which is representing the state in the trigger law case — to ask a judge to reconsider under the resolution whether an injunction should remain in effect.

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In a lengthy presentation, the Republican lawmaker told the committee that changing the rule would bring Utah in line with federal standards for issuing an injunction, and that the current rule makes it more likely that laws passed by the Legislature will be held up in court.

“If we were to not pass this, what could very easily happen is anything that is controversial, moving forward, might be presumed constitutional, but it would not go into effect until the Supreme Court then weighs in on it,” Brammer said.

Brammer has previously avoided linking the joint resolution to the trigger law injunction, declining to comment when asked by The Salt Lake Tribune earlier this month whether it was connected to the case. But when pressed by Rep. Brian King, D-Salt Lake City, Brammer said the Dobbs decision issued by the U.S. Supreme Court in June — which left the right to make abortion policy up to states, and triggered Utah’s abortion ban — “brings [the issue] to a head.”

Among the people who showed up to speak against the bill were Salt Lake County prosecutor Will Carlson, Utah Medical Association general counsel Mark Brinton and American Civil Liberties Union of Utah legal director John Mejia.

Many of the speakers voiced worries about the joint resolution’s wider application beyond the case surrounding the trigger law. No one in attendance stood up to support the legislation.

“I’ve been proud as long as I’ve been a lawyer in Utah to say that Utah’s Constitution and court rules are more protective of people’s rights than federal law,” said Mejia, who is one of the attorneys challenging the trigger law in court. “And I’m not sure why we are making courts less able to protect the status quo in support of people’s rights.”

The assistant administrator for Utah Courts, Michael Drechsel, told lawmakers that the courts are not taking an official position on the joint resolution. Instead, Drechsel relayed concerns that the resolution’s retroactivity clause could result in judges having to revisit previously decided issues.

“This affects judicial resources, it affects fairness of process, and these things are of deep concern to the courts,” Drechsel said.

King attempted to amend the joint resolution to remove the retroactivity clause, but the amendment failed as he earned loud nays from most of the Republicans on the committee.

A memo from the Legislature’s associate general counsel obtained by The Tribune said a retroactive change to court rules is untested, and that a court could find that the joint resolution “violates the separation of powers and judicial power provisions of the Utah Constitution.”

The joint resolution will next move on to the House for further consideration. To pass out of the House, two-thirds of representatives must vote in favor of it.