‘Expression of unchecked power’: Court may be forced to reconsider hold on Utah’s abortion ban soon

The Utah House of Representatives voted in favor of a change to court rules that would effectively end the hold on the state’s abortion trigger law.

(Francisco Kjolseth | The Salt Lake Tribune) State Rep. Brady Brammer, R-Pleasant Grove, talks about a bill during the legislative session at the Capitol in Salt Lake City on Tuesday, Jan. 25, 2022. Brammer's bill changing court rules for when judges can grant an injunction passed out of the Utah House of Representatives on Monday.

Republicans in the Legislature are one step closer to ending a hold placed on their abortion trigger law in district court after the Utah House voted to change the rules regarding when a judge can issue an injunction.

The joint resolution, introduced 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. Representatives approved it on party lines Monday, with two Republicans who voted against it in committee flipping their votes.

The final vote was 59-13, with two members not voting.

While Brammer did not reference the hold on the trigger law in his remarks in front of the body, he did, when speaking to the House Judiciary Committee, say, “the trigger law was also a trigger to this.”

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 trigger law, which imposes a near ban on abortion. The law went into effect after the U.S. Supreme Court overturned Roe v. Wade, the landmark case that determined women had a constitutional right to an abortion, last summer.

In Stone’s order temporarily blocking the trigger law, 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. 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 an injunction under the resolution whether an injunction should remain in effect.

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The Utah Supreme Court in October declined to lift the injunction following a request from the attorney general’s office.

“Injunctions are an extraordinary and drastic remedy and should not be granted lightly,” Brammer said while presenting his legislation. He continued, saying, “On the long-term issue of this, as far as it relates to the Legislature, one of the concerns is will our laws take effect?”

Most of the opposition to the joint resolution has centered around its retroactivity clause. During a House Judiciary Committee hearing last week, representatives from Utah Courts, the Salt Lake County district attorney’s office and the American Civil Liberties Union voiced concerns about the legislation’s wider implications.

Utah Courts has not taken an official position on the bill, as noted by Brammer during debate on Monday, but its assistant administrator, Michael Drechsel, relayed worries during a committee meeting 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.

According to a fiscal analysis of the joint resolution, every 10 cases with civil temporary restraining orders and civil injunctions impacted by the potential passage of the bill would cost the courts approximately $6,500. It went on to note “the total amount of applicable cases is unknown.”

(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.

Other critics who spoke to the committee argued it would affect injunctions in family law cases, as well as cases surrounding eminent domain, zoning, contracts and private property rights.

Outside of GOP lawmakers on the committee, no one in attendance spoke in support of the joint resolution.

Brammer, pointing to a portion of his proposal that says “Nothing in this rule shall be construed to limit the equitable powers of the courts in domestic relations cases,” said it wouldn’t impact family law and that the joint resolution would only influence “a small portion” of cases in other areas of law.

Both in the committee and during floor time, Rep. Brian King, D-Salt Lake City, proposed amending the bill to remove the retroactivity clause.

“The question is, to me, whether we should be acting as a Legislature to inject ourselves into piece of current litigation that involves contested questions or controversies, and using a sledgehammer to deal with the particular facts of that particular case,” King said.

All Democrats in the House supported that change, and three Republicans — Rep. Nelson Abbott, R-Orem; Rep. Judy Rohner, R-West Valley City; and Rep. Ryan Wilcox, R-Ogden — voted in favor of it. The amendment ultimately failed.

In a statement released after Monday’s vote, the House Democratic Caucus wrote, “Utah courts should remain free to provide the protections guaranteed to Utah’s citizens under the state constitution. ... It is disheartening to see the extent lawmakers are willing to go to deny access to lifesaving medical care. This affects both patients and providers.

“Court proceedings can be complex and take many years to resolve, and the passage of H.J. R. 2 allows legislation to go into effect while still in the judicial review process. This is unwise and unjust. H.J.R. 02 is an overreach by the Legislature and an expression of unchecked power.”

The Utah Democratic Party similarly released a statement condemning the vote, saying, “The Republican supermajority will stop at nothing to implement their extreme abortion ban. Rather than respecting the judicial process and waiting for the lawsuit challenging the ban to move through the courts in a fair and balanced manner, they are taking the extraordinary step of retroactively changing the rules to get their way.”

This is not Republican lawmakers’ first effort to defy the hold on the law. 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.

Republican Reps. Kera Birkeland, R-Morgan, and Karianne Lisonbee, R-Clearfield, in September sent cease-and-desist letters signed by nearly two dozen others — including Brammer — to abortion providers, saying anyone who violates the abortion ban while it is blocked will be prosecuted. They later sent an email to reporters saying the letters were only “our opinion and the opinion of the legislators who signed it.”

Brammer’s joint resolution next moves on to be considered by the Utah Senate.

Amending court rules requires the approval of two-thirds of both legislative bodies, and does not require the governor’s signature.