Utah court decision on blocking abortion clinic ban will wait

Third District Court Judge Andrew Stone said at the end of a hearing Friday he didn’t want to ‘shoot from the hip.’

(Trent Nelson | The Salt Lake Tribune) Attorney Hannah Swanson presents Planned Parenthood's request for a preliminary injunction on the abortion clinic ban before Judge Andrew Stone in Salt Lake City on Friday, April 28, 2023.

Days before a ban on abortion clinics would put a halt to most abortions in Utah, a district court judge said he’ll make a decision as to whether to enjoin the law next week.

Planned Parenthood Association of Utah asked Third District Court Judge Andrew Stone to put the law on hold at the beginning of April — one month before its May 3 effective date. Gov. Spencer Cox signed HB467, “Abortion Changes,” into law on March 15.

“It would not be fair at this point to shoot from the hip,” Stone said after hearing oral arguments on the motion, adding he’s going to take time to reread both parties’ briefs.

The request came as part of Planned Parenthood’s larger lawsuit challenging Utah’s abortion trigger law, which went into effect last summer following the U.S. Supreme Court’s decision to overturn the landmark abortion rights case Roe v. Wade. It bans abortion with limited exceptions.

Stone put a temporary restraining order on the trigger law a few days later, and eventually issued a temporary injunction that remains in place. Under that earlier order, abortions in Utah remain legal up to 18 weeks with some exceptions after the gestational limit.

(Trent Nelson | The Salt Lake Tribune) Lance Sorenson speaks for the state as Judge Andrew Stone hears Planned Parenthood's request for a preliminary injunction on the abortion clinic ban, in Salt Lake City on Friday, April 28, 2023.

The law, introduced by Rep. Karianne Lisonbee, R-Clearfield, builds on both the blocked trigger ban and the 18-week ban to make numerous changes to abortion policy. The most impactful shifts include forcing abortions into facilities that meet the bill’s definition of a hospital, stopping license renewal for clinics in May and outright prohibiting clinics beginning in 2024.

It also adds professional penalties for health care providers who provide illegal abortions, further limits when people can seek an abortion after being sexually assaulted and discourages it if the fetus has a fatal abnormality.

Lisonbee’s bill was one of two passed this session that restricts abortions for rape and incest victims to 18 weeks, and requires doctors to tell parents whose fetus is “incompatible with life” that hospice and palliative care options are available as alternatives to abortion.

“In this motion, Planned Parenthood is asking for a second preliminary injunction against a second abortion ban,” Planned Parenthood attorney Hannah Swanson said in court Friday.

Attorneys for Planned Parenthood have described the law in court filings as an attempt by the Legislature “to accomplish by other means what the Utah courts have prevented it from doing directly — ban abortion in Utah.”

The organization, which operates three of four abortion clinics in Utah and provides approximately 95% of abortions in the state, said in a news conference earlier this month that it will stop offering abortion services May 3 if the bill is allowed to go into effect.

Responding to Planned Parenthood’s request that HB467 be put on hold, the Utah Attorney General’s office opened its argument referring to rule changes brought about by another lawmaker’s bill targeting the block on the trigger ban.

“For the court to resolve (Planned Parenthood’s) request to enjoin HB467, it is imperative that the court first answer one straightforward legal question, which is: Does the Utah Constitution protect abortion as a fundamental right?” asked Lance Sorenson, on behalf of the state.

Rep. Brady Brammer’s, R-Pleasant Grove, HJR2 — or Joint Resolution Amending Rules of Civil Procedure on Injunctions — retroactively changed the rules for when a judge can issue an injunction, eliminating the language Stone used for pausing the trigger law.

In his earlier preliminary injunction order, Stone wrote that Planned Parenthood “has demonstrated that there are at least serious issues on the merits that should be the subject of further litigation.” Now, a judge can only enjoin a law if “there is a substantial likelihood that the applicant will prevail on the merits.”

In light of HJR2′s changes, Stone briefly defended his standing injunction, saying, “I think the record from that first argument will show I went a little beyond just ‘serious issues.’”

That joint resolution has also raised questions about the fate of the larger lawsuit, FOX13 reported.

The state appealed the injunction on the trigger ban to the Utah Supreme Court. The court has since delayed hearing the appeal while it examines the impact of Brammer’s resolution — with Associate Chief Justice John Pearce writing that it changes rules “in two ways potentially material to whether interlocutory review continues to be warranted.”

Raising his hand, Stone interrupted Sorenson’s argument as it was beginning, saying the state was inviting him to take up the looming issue of whether the right to an abortion is protected under the Utah Constitution. That question, he said, currently falls under the jurisdiction of the Utah Supreme Court.

“What I don’t want to do is tread on what the Supreme Court may have jurisdiction on, and I think they will clear that up shortly, from what I can tell,” Stone said.

During debate at the Legislature this year, sponsors said some clinics would be able to apply for a license that would allow them to offer abortions if they meet the bill’s “hospital” definition. That definition says a clinic must be “certified by the (Department of Health and Human Services) as providing equipment and personnel sufficient in quantity and quality to provide the same degree of safety as ... a general hospital licensed by the department.”

Attorneys for the state echoed that Friday, saying, “There’s nothing in HB467 that would prevent plaintiff from restructuring itself to apply hospital requirements and obtain a hospital license.”

But in its request for a preliminary injunction, Planned Parenthood’s attorneys included a declaration from Annabel Sheinberg, who serves as vice president of external affairs, who said she met with DHHS soon after the bill was signed in March to ask how her organization could obtain such a license.

The licensing division director reportedly told her “that only licensed general hospitals and satellite facilities operating under a general hospital’s license would be eligible for HB467′s expanded ‘hospital’ definition.”

In response to a similar question The Salt Lake Tribune posed to the agency in March, spokesperson Charla Haley said in an email that if an abortion clinic “meets the requirements of a hospital, then they may apply for a hospital license. However, any licensed hospital could add abortion services under their hospital license.”

Whether hospitals will offer any abortion services remains a question. The Tribune reported in March that DHHS has no “mechanism” to track the procedures that hospitals offer, because “it can be a long list and can be changed at any time,” Haley said.

“This is a very cruel law because it prevents women from coming to clinics to seek abortion care, and it prevents Planned Parenthood and clinics from providing safe, accessible, affordable abortion,” Planned Parenthood Association of Utah’s interim director, Sarah Stoesz, said at a news conference following the hearing.