Does the Utah Constitution protect abortion rights? Utah Supreme Court to begin hearing arguments Tuesday.

The Utah Supreme Court will hear arguments on whether health care providers can continue offering elective abortions, while determining what rights are protected in Utah.

(Emily Anderson Stern | The Salt Lake Tribune) People attend an anti-abortion prayer meeting at the Utah Capitol Sunday, Aug. 6, 2023.

Over a year out from the U.S. Supreme Court’s decision to hand states the ability to determine abortion policy, Utah’s highest court will hear arguments Tuesday as to whether that choice should remain available in the Beehive State.

A trigger law banning abortion in nearly all cases — except in instances of sexual crimes, when there is a fatal fetal abnormality or the mother’s life is at risk — went into effect in June 2022. It was blocked within a few days with a restraining order, and later an injunction, by a district court judge in a challenge filed by the Planned Parenthood Association of Utah.

With the injunction in place, abortion is legal up to 18 weeks in Utah.

The Utah Supreme Court will hear from both parties Tuesday before it decides if health care providers can continue offering elective abortions while the courts determine whether the state’s constitution protects that option. It may likely be weeks, though, before Utahns know how the justices will rule.

Their decision on the injunction will likely have larger implications for the future of reproductive rights in the state. The court may, in the process of ruling on the injunction, answer the question: Does the Utah Constitution protect the right to an abortion?

Utah’s attorney general’s office asked the high court to revisit the injunction last August. The court kept the trigger hold in place and scheduled a hearing for May, but delayed that hearing after the Utah Legislature passed a resolution retroactively changing the rules for when a court can block a law, asking for additional briefing.

Rep. Brady Brammer, R-Pleasant Grove, the sponsor of that resolution — Joint Resolution Amending Rules of Civil Procedure on Injunctions, or House Joint Resolution 2 — said in debate that the “trigger law was also a trigger to this.”

Since its abortion restrictions were put on hold, the Legislature made other efforts to circumvent the court’s pause with a law banning abortion clinics and further limiting when pregnant people can access abortions. Planned Parenthood asked the same judge to temporarily stop the law — Rep. Karianne Lisonbee’s, R-Clearfield, House Bill 467 — as part of its ongoing lawsuit, and he granted the request in May.

This five-justice supreme court is for the first time majority woman, and all five justices were appointed by Republican governors — two by former Gov. Gary Herbert, who signed the trigger ban in 2020, and two by Cox, who signed HB467.

Because it amended court rules, HJR2 did not require the governor’s signature under Utah’s constitution. The law came after the Legislature submitted a friend-of-the-court brief in December that criticized the standard the district court judge used in justifying the injunction.

State of abortion in Utah

On the Sunday prior to the hearing, about a hundred people gathered on the steps of the Capitol for a “prayer rally” to “end elective abortion in Utah.” Standing in the evening sun, with a 10-gallon water jug and a stack of plastic cups to keep them hydrated, the group sang over a dozen Christian songs — and a couple of Latter-day Saint hymns.

“So much rides on this decision,” Mary Taylor, president of Pro-Life Utah, said to the protesters. “Babies’ lives are literally on the line. We come here to pray for the supreme court justices who will make this decision on Tuesday.”

Taylor’s organization filed an amicus brief in the case, written by former Utah Supreme Court Justice — and brother of Sen. Mike Lee — Thomas Lee. Brammer, the HJR2 author, also wrote an amicus brief on behalf of an anti-abortion group. That group, the Utah chapter of the conservative Eagle Forum, formed in the 1970s to oppose the Equal Rights Amendment in part because it thought it would widen access to abortion.

(Emily Anderson Stern | The Salt Lake Tribune) People attend an anti-abortion prayer meeting at the Utah Capitol Sunday, Aug. 6, 2023.

Planned Parenthood reported performing 2,818 abortions in 2022. And the organization says abortion clinics provide over 95% of all abortions in the state. Three of four clinics that offer abortion in Utah are operated by Planned Parenthood.

“Should the trigger ban be allowed to take effect while our case is still working through the courts?” said Planned Parenthood Association of Utah CEO Kathryn Boyd during a news call Thursday. “This will cut off abortion care, and we know what will happen. We previewed the chaos and the confusion that the abortion ban caused when it was briefly in effect last June, and we see it every day across the country”

Approximately 15 states currently have in place full abortion bans similar to Utah’s enjoined ban, although some offer fewer exceptions. Doctors have expressed concerns about the clarity of Utah’s exceptions, however, and knowing when they can legally offer an abortion. Lisonbee attempted to clear that up in her bill this year.

Planned Parenthood Association of Utah is holding a hearing watch party for supporters Tuesday, but did not allow media to attend.

What the two parties are saying

Brammer’s resolution made it so a judge cannot grant an injunction enjoining the enforcement of a law unless the case has a substantial likelihood of success, which can be applied retroactively if a party appeals an existing injunction.

In 3rd District Court Judge Andrew Stone’s order granting Planned Parenthood’s motion for a preliminary injunction, he wrote that attorneys for the organization “demonstrated that there are at least serious issues on the merits that should be the subject of further litigation.”

The resolution could force Planned Parenthood to prove that its case is likely to succeed for the injunction to continue, although Stone said in a hearing over the clinic ban in May that “I think the record from that first argument will show I went a little beyond just ‘serious issues.’”

(Trent Nelson | The Salt Lake Tribune) People march around the State Capitol in Salt Lake City in support of abortion rights on Saturday, Oct. 8, 2022.

In its supplementary briefs to the supreme court prior to Tuesday’s hearing, attorneys for Planned Parenthood argued that even under the new standards laid out in HJR2, the trigger ban should remain blocked. It said it is likely to prevail on the merits, but if the state did appeal the injunction again under HJR2, it would also challenge the resolution as “unlawful.”

The Utah Attorney General’s office argued in its brief that the district court got the injunction wrong — under both the previous and current court rules.

“House Joint Resolution 2 did not resolve the primary issues on appeal: PPAU’s lack of standing and the legal impossibility of showing the original public meaning of the Utah Constitution protects an implied right to abortion. Answering either question now will provide important precedent,” the state’s attorneys wrote.

The state went on to ask the supreme court to take on the larger constitutional question at the center of the case because, “The interests at stake — preserving unborn life and maternal health — are too important to further delay resolving the issues raised in this appeal,” its brief said.