How Utah Republicans are trying to influence an active Supreme Court case

Rep. Karianne Lisonbee wants to repeal part of 2023′s abortion clinic ban in hopes that the Utah Supreme Court will then preserve the Legislature’s trigger ban.

(Rick Egan | The Salt Lake Tribune) Rep Karianne Lisonbee and Sen. Dan McCay discuss HB467 during a Senate committee meeting, on Wednesday, Feb. 22, 2023. Lisonbee is proposing legislation this year in hope of expediting the Utah Supreme Court's ruling on the state's abortion trigger law.

Thousands of Utahns continue to access abortion care each year despite the Legislature passing a near-total ban four years ago. And GOP lawmakers’ patience is growing thin.

In an attempt to circumvent a district court’s block on the 2020 trigger law, legislators voted last year to prohibit abortion clinics in the Beehive State. Now, after that measure was also paused, the sponsor is proposing rolling back the clinic ban in hopes of expediting a total abortion ban.

“It’s my understanding that when we do this, it will simplify the question before the Supreme Court of Utah,” Clearfield Republican Rep. Karianne Lisonbee told the House Judiciary Committee on Tuesday.

In a vote Wednesday, the House passed the bill 59-10, with Democrats comprising the “nay” votes. Some Democrats who opposed the clinic ban last year voted to remove the held up restrictions.

Abortion is currently legal up to 18 weeks in Utah. But if the trigger law replaces the current restrictions, pregnancies could only be terminated prior to 18 weeks when someone became pregnant as a result of rape or incest, when the pregnancy endangers the life of the mother or risks “substantial impairment of a major bodily function,” or when the fetus has a fatal anomaly.

Planned Parenthood Association of Utah is suing to stop that ban, and tacked on the abortion clinic restrictions after they passed last year. The question as to whether an injunction on the trigger law should stay in place sits with the Utah Supreme Court, which heard arguments last August.

If Lisonbee’s clinic ban — 2023′s HB467 — had been allowed to take effect, all abortions in the state would have been pushed into hospitals.

This year’s “Licensing Modifications,” or HB560, would undo the effort to eliminate the licensure category for abortion clinics and allow abortions to be performed in them. That would leave one less question for courts to address after the Supreme Court rules on the injunction.

Lisonbee, who is House majority whip, said she is proposing repealing her bill “in consultation with our legislative attorneys and with other attorneys in the state” — presumably the Utah attorney general’s office, which is representing the state in the trigger bill case. The representative has not responded to requests for an interview.

The attorney general’s office did not immediately respond to a request for comment on the legislation and how it might impact the case.

“There is plenty of case law stating that the state has a legitimate interest in protecting the unborn,” Lisonbee told the committee. “And in Utah, we have tried to do that again, and again, and again.”

‘A more dangerous state’

A few months after an injunction was placed on the ban, Lisonbee and her Republican colleague Rep. Kera Birkeland sent cease-and-desist letters using official House letterhead to abortion providers, threatening prosecution if they continued offering that care. They later backpedaled and said the letter was their opinion, not a legal document.

In November 2022, lawmakers voted to submit a rare amicus brief opposing the injunction. And in the 2023 session, the Legislature retroactively changed court rules as to when a judge can block one of its laws — specifically taking aim at language the district court judge used in stopping the trigger ban.

Representatives from Pro-Life Utah and the conservative Eagle Forum attended the committee hearing to support Lisonbee’s latest abortion bill. The head of the Utah Eagle Forum, Gayle Ruzicka, said, “Anything that will save babies is what I’m in favor of.”

In court filings questioning the legality of the clinic ban, attorneys for Planned Parenthood described the law 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.”

One of the two Democrats on the 12-member committee, Salt Lake City Democratic Rep. Brian King, questioned whether repealing the law to try to influence the outcome of an ongoing lawsuit upends the judicial branch’s independence.

“I think it’s remarkable that we’re trying to pass legislation that immediately indirectly is intended to impact pending litigation before the Supreme Court,” said Salt Lake City Democratic Rep. Brian King during Tuesday’s committee meeting. “That is unusual. And I think it is a derogation of our responsibilities and a violation of separation of powers principles that are pretty basic.”

After King made similar remarks on the House floor, one of his GOP colleagues, Rep. Brady Brammer of Pleasant Grove, said it’s “simply not the case” that because the bill is enjoined the Legislature must be as well.

Lisonbee called King’s sentiments “ironic and pretty disingenuous” because she said the Democrat is running a bill “with the exact language that is in mine.” Although King’s bill would also remove the possibility of an abortion clinic ban, it also clarifies that abortions may be performed in those facilities.

King’s “Abortion Revisions” goes on to remove other barriers to abortion, including eliminating the state’s 72-hour waiting period and modifies the information included in Utah’s required abortion education module. The version under King’s bill would only include information that is “scientifically accurate, comprehensible, and presented in a truthful, nonmisleading manner,” taking out statements like, “the state prefers childbirth over abortion.”

The House Rules Committee, chaired by Brammer, has not assigned that bill to a standing committee for public debate.

Following the abortion clinic ban’s passage, the University of Utah’s ASCENT Center for Reproductive Health worked to determine whether hospitals were prepared to take on all abortions in Utah (hospitals often refer people who need non-elective abortions to clinics, too).

Researchers called 50 hospitals throughout the Beehive State, asking staff, “If someone needed abortion care, could they receive it at your hospital?” While one larger hospital system had developed a process for handling such questions, many health facilities were ill-prepared for such requests. Some staffers were confused, and others told callers that abortion is illegal.

The most recent data published by the state’s Department of Health and Human Services indicates 2,978 Utahns obtained an abortion in 2021.

The most common reason cited by those patients is socioeconomic limitations — they couldn’t afford to give birth and raise a child. Data also indicates that barriers to abortion care disproportionately impact Utahns of color.

“I’d like to speak directly to the 2,540 ... patients who sought abortions last year in Utah,” said Planned Parenthood Association of Utah’s chief corporate affairs officer, Shireen Ghorbani. “They deserve to live in a state that doesn’t have constant chaos around this issue. The cycle of writing and repealing laws only feeds the uncertainty that these patients face and makes this a more dangerous state for people who are trying to have families.”