Utah judge blocks abortion clinic ban — for now. Here’s why.

The district court’s decision comes just hours before the new law was scheduled to take effect on Wednesday.

(Rick Egan | The Salt Lake Tribune) Planned Parenthood, on Monday, April 10, 2023.

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Planned Parenthood and other clinics can continue to offer abortions in Utah, at least for now, a district court judge decided Tuesday in the latest development in a case that will determine the future of reproductive options in the Beehive State.

Whether a law that bans abortion clinics in Utah goes into effect now depends on a larger question that lies with the state’s highest court as it considers the state’s blocked trigger law: Is the right to an abortion protected by the Utah Constitution?

In his order Tuesday, 3rd District Court Judge Andrew Stone completely avoided that question, saying it is out of his jurisdiction. He instead focused on whether the law unfairly targets abortion clinics like those run by Planned Parenthood.

“The Clinic Ban places a greater burden on licensed abortion clinics by criminalizing abortions performed in such clinics despite the unrebutted evidence that abortions performed in an outpatient clinic are equally as safe as those performed in a hospital,” the judge wrote. Stone is the same judge who pulled the brake on the trigger law after Planned Parenthood Association of Utah filed a lawsuit challenging it last summer.

The decision comes just hours before the new law — Rep. Karianne Lisonbee’s HB467, called “Abortion Changes” — was scheduled to take effect on Wednesday.

“The court’s decision today allows people in Utah to breathe a huge sigh of relief. It means that clinics can continue providing essential health care to our patients, who for months have lived in a state of chaos and confusion over the impact of this law on their lives,” said Planned Parenthood Association of Utah’s interim Director Sarah Stoesz in a statement Tuesday.

She continued, “While we welcome this victory, the threat to Utahns’ health and personal freedom remains dire as politicians continue to undermine our judicial process and fight the injunction against Utah’s trigger ban.”

Utah’s abortion trigger ban, which passed in 2020, went into effect in June 2022 after the U.S. Supreme Court overturned the landmark abortion rights case Roe v. Wade. Stone stopped it with a restraining order a few days later, and eventually with a preliminary injunction.

The state’s attorney general’s office appealed Stone’s injunction to the Utah Supreme Court, where the five justices are currently mulling what to do with the law.

Abortion remains legal in Utah up to 18 weeks, with some exceptions after that limit.

The second injunction issued by Stone shelves Lisonbee’s “Abortion Changes” until the Utah Supreme Court makes its decision on the earlier case. Signed by Gov. Spencer Cox in March, this year’s HB467 would add more restrictions and penalties to the trigger law, but its most impactful change would force abortions into facilities that meet the law’s definition of a hospital.

Lisonbee did not immediately respond to a request for comment.

If enacted later, facilities licensed as abortion clinics would not have been able to renew their licenses and would be outright prohibited from operating in the state beginning in 2024. It also makes violating abortion laws unprofessional conduct for health care providers and limits when sex crime victims can seek an abortion to 18 weeks.

Clinics and hospitals “provide comparable care”

Arguments delivered last week by attorneys for Planned Parenthood and the state centered around whether HB467 goes around Stone’s earlier injunction to create a second abortion ban, and whether moving abortions to facilities that meet the “hospital” definition makes abortions safer.

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.”

According to Planned Parenthood, which operates three of four abortion clinics in Utah, clinics provide 95% of Utah’s abortions. Sponsors of the bill told lawmakers during debate that some clinics would be able 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 argued Friday that “there’s nothing in HB467 that would prevent (Planned Parenthood) from restructuring itself to apply hospital requirements and obtain a hospital license.”

Assistant Attorney General Lance Sorenson reasoned the law should move forward because, as he told the court Friday, hospitals are, in fact, different from abortion clinics.

“(Hospitals) operate under higher standards of care pursuant to the regulations,” Sorenson said. “They have better emergency care — that’s why (Planned Parenthood) transfers cases to hospitals annually for emergency care.”

Weighing the evidence presented by both sides, Stone determined that “in terms of the treatment provided in performing abortion as a routine and common medical procedure and considering patient health and safety, (hospitals and abortion clinics) provide comparable care.”

He described the law’s separate classifications of health care facilities as “not reasonable,” and wrote that the new law appears to “directly and discriminatorily target” clinics like Planned Parenthood. To demonstrate that abortion clinics were singled out in the law, Stone referenced Lisonbee’s remarks during legislative debate

“I actually don’t think that that is what this bill does ... the language about hospitals is the existing language (in the abortion law). There is a deletion of Planned Parenthood — or, I’m sorry — of abortion clinics,” Lisonbee said in February in front of the House Judiciary Committee.

Planned Parenthood’s attorneys included in its request for a preliminary injunction a declaration from Annabel Sheinberg, the organization’s vice president of external affairs, who said a licensing division director for DHHS 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.”

Hannah Swanson, an attorney for Planned Parenthood, noted that Utah hospitals only offer abortions for cases in which the mother’s life or health is in danger, there is a fetal anomaly or the pregnancy is a result of rape or incest. And in many of those cases, patients are often referred to abortion clinics because of lower costs.

“That’s not just due to hospital preference,” Swanson said. “It’s a function of Utah laws that restrict access to abortion.”

At University of Utah Hospital, for example, Utah law forbids the state-owned institution from offering abortions outside of those circumstances.

“Let’s be very clear about something — there are no other alternatives if these clinics are shut down,” said Planned Parenthood’s Stoesz at a news conference Friday. “Hospitals have not stepped forward to say that they will take up the care that licensed abortion clinics may no longer be able to ... provide, and in fact, it will leave pregnant women without safe options.”

What happens next in the larger lawsuit over abortion access is up to the majority-woman Utah Supreme Court. The court has delayed hearings on the state’s appeal of the hold on the trigger ban after lawmakers passed a joint resolution during the 2023 legislative session to retroactively change court rules and force a judicial reconsideration of the blocked abortion ban.