Equality in Utah’s constitution didn’t include the right to abortion, state’s attorneys argue to Utah Supreme Court

Justices heard arguments for more than four hours on Tuesday and it’s unclear on when they could rule on Utah’s blocked abortion trigger law.

(Francisco Kjolseth | The Salt Lake Tribune) Utah Supreme Court Justice Jill M. Pohlman listens to oral arguments involving the Utah’s abortion trigger law before the Utah Supreme Court in Salt Lake City, Tuesday, Aug. 8, 2023.

In an hourslong hearing on whether Utah’s abortion trigger ban should remain blocked while courts determine its constitutionality, Utah Supreme Court justices on Tuesday asked dozens of questions of attorneys, focusing on how the original meaning of the state’s founding document extends to this issue, and the boundaries of a person’s right to make medical decisions.

The state’s trigger law went into effect last June after the U.S. Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that the federal constitution does not protect a right to abortion. It bans 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.

Planned Parenthood Association of Utah filed a lawsuit challenging that law, and within a few days, a district court judge put the law on hold. While the trigger ban is enjoined, abortion is allowed up to 18 weeks in Utah.

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

It’s unclear when the majority-woman supreme court might announce a decision on the injunction, and what the abortion landscape in Utah might look like going forward. If the court decides to end the injunction, Planned Parenthood Association of Utah CEO Kathryn Boyd told reporters in a news conference following the hearing that abortions in its Utah clinics will immediately stop.

“(Patients) will have to travel out of state, they will have to find hotel accommodations,” Boyd said. “They will have to figure out all of these pieces just so that they can monitor and control their own bodily autonomy.”

Taylor Meehan, a Chicago-based attorney with boutique law firm Consovoy McCarthy, opened the state’s arguments by summarizing the state’s history of regulating abortion. She and the firm are also defending the state against claims that voting maps drawn up by the Legislature are an illegal political gerrymander.

Directly behind her in the gallery was the sponsor of Utah’s 2020 abortion trigger law, Sen. Dan McCay, R-Riverton, who spent the minutes before the hearing talking with the president of Pro-Life Utah, Mary Taylor, and Gayle Ruzicka, the president of the Utah chapter of the conservative Eagle Forum.

McCay said the court’s role is to look backward when assessing legal questions, while the Legislature looks forward to build on policy. “When you look at the court’s role in balancing this, I’m hoping that the court will see we had the original bill that passed, and then we made modifications, and we’re willing to still continue to revisit the issues as the policy continues to evolve in this country and in the state.”

(Francisco Kjolseth | The Salt Lake Tribune) Sen. Daniel McCay, R-Riverton, speaks with Gayle Ruzicka of the Utah Eagle Forum prior to oral arguments involving Utah’s abortion trigger law before the Utah Supreme Court in Salt Lake City, Tuesday, Aug. 8, 2023.

Prior to the U.S. Supreme Court’s 1973 ruling in Roe v. Wade that women do have a constitutional right to an abortion, Meehan told the justice, Utah had an unbroken history of prohibiting abortion. When that decision was undone last year, she said, it “returned that question to the people and their elected representatives.”

To allow the trigger law to again be enforced would recognize the Legislature’s right to make laws on abortion, Meehan argued.

How does the original meaning of the Utah Constitution square with abortion policy?

Abortion restrictions were likewise in place when Utah drafted its constitution in 1895, and what became one of the central questions of Tuesday’s hearing is what rights were imbued by the equal rights clause of that document.

In Article IV Section 1, the Utah Constitution says, “The rights of citizens of the State of Utah to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges.”

Because abortion was banned when the Constitution was ratified, Meehan said justices should interpret that clause to not include that right.

(Francisco Kjolseth | The Salt Lake Tribune) Attorney’s Camila Vega with Planned Parenthood, left, and Julie Murray with the ACLU, listens to oral arguments involving the Utah’s abortion trigger law before the Utah Supreme Court in Salt Lake City, Tuesday, Aug. 8, 2023.

But Camila Vega, a staff attorney for Planned Parenthood Federation of America, said the state’s founders “could not possibly have imagined a world where abortion is safe, legal and routine.”

In Planned Parenthood’s view, the Utah Constitution may not necessarily include an implicit right to abortion — but it does include equal rights for women, which Vega said can’t be guaranteed without access to abortion. She said the state cannot punish women for engaging in intercourse while there can never be an equal ramification for men.

“When women are denied an abortion, they suffer worse, not only physical, mental health outcomes, but also worse social and economic outcomes,” Vega said, adding the state did not dispute that women’s “ability to participate in the workforce is negatively impacted (by the law), that it has ramifications for their existing families and that it impacts their ability to leave an abusive partner.”

Meehan pushed back on that interpretation of equal rights, referring to women’s accomplishments in the state before abortion restrictions were on a limited basis rolled back.

“The argument seems to be that women have achieved their place in Utah because of their right to abortion,” Meehan said. “And I think that very much is a retelling of the state’s history and an undermining of women’s achievements.”

There were no women among the delegates at the state’s 19th-century constitutional convention, and women were not allowed to vote on whether to accept the final product. Justice Paige Petersen said that makes it difficult for the court to determine how those women might have interpreted the constitution and what rights it includes.

Justice Diana Hagen said only asking whether women have the right to an abortion might be too narrow of a way to look at it, and that the court might need to consider people’s broader right to make their own medical decisions.

“The level of specificity problem is what keeps me up at night about this case,” Hagen said, adding that the state has a stronger case if the court more narrowly looks at the right to an abortion.

But, she went on to say that Planned Parenthood has an edge on the state “if we define it more generally as whether the people of Utah would have understood that they had a right to make their own medical decisions, for instance, or that they could make these private decisions about their family without state interference.”

Do people have the right to make medical decisions?

Echoing an oft-repeated anti-abortion argument, Meehan said a pregnant person’s decisions about their pregnancy affect more than one person — they also “implicate the rights of an unborn child.”

Hagen questioned her on whether, under that argument, the state also has the ability to determine when a pregnant person must submit to a cesarean section, or if it can limit men’s access to vasectomies.

Meehan said when it comes to Utah’s ability to take action when a woman refuses a C-section, that the “rights of children” again come into play, and that the state’s position might vary “person to person,” depending on individual circumstances. But the state would not interfere in a man’s attempt to get a vasectomy.

“At the time of the vasectomy, it is one person, whereas at the time of the abortion, it is to two people,” Meehan said.

(Francisco Kjolseth | The Salt Lake Tribune) Kathryn Boyd, new CEO of Planned Parenthood Association of Utah, holds a news conference outside of the Matheson Courthouse following oral arguments involving Utah’s abortion trigger law before the Utah Supreme Court in Salt Lake City, Tuesday, Aug. 8, 2023.

On the other side, Vega argued that it isn’t controversial to say that an individual shouldn’t be forced to undergo surgery, and that ”the alternative to getting an abortion is not just” a medical procedure.

“It is 40 weeks of pregnancy and all of the physical and mental health changes that are attended to that ultimately culminating in labor and birth,” Vega said.

Should Planned Parenthood be able to challenge abortion laws?

The outcome of the case may also hinge on whether Planned Parenthood Association of Utah, as an organization, has the legal standing to challenge the constitutionality of a law on behalf of individuals who might be forced to remain pregnant under it. Only in limited circumstances can a party bring a challenge before the court when the individual whose rights are being violated is not present.

“Planned Parenthood doesn’t know who its future patients would be,” Meehan told the justices

In addition to hurting patients, Vega said an end to the abortion injunction would have negative consequences for Planned Parenthood as an organization. Vega argued that Planned Parenthood would suffer injuries to its reputation because it wouldn’t be able to fulfill its mission of providing “comprehensive sexual and reproductive health care services.”

While Planned Parenthood might feel the pain of the court removing the injunction, Chief Justice Matthew Durrant noted that the organization itself may not suffer from constitutional rights violations.

Why would it be hard for Planned Parenthood to add an individual plaintiff, Petersen asked, even under a pseudonym?

Vega explained that any pregnant patient who might join as a plaintiff would only do so in a “representative capacity,” either because they would have obtained an abortion within Utah’s 18-week limit, or they would have carried the pregnancy to term and would no longer be able to seek Planned Parenthood’s services.