Bid to reinstate Utah’s abortion ban takes lawmakers into uncharted waters, Robert Gehrke reports

Changing judicial rules to reverse past rulings could run afoul of Utah’s Constitution, a lawyer for the Legislature warns in a legal analysis obtained by The Salt Lake Tribune.

The Utah Legislature will be entering uncharted territory if it tries to wipe out a court decision blocking the state’s sweeping ban on most abortions, according to a memo from legislative attorneys.

State Rep. Brady Brammer, R-Lehi, is sponsoring House Joint Resolution 2, which seeks to rewrite the rules for the judiciary and change the threshold for parties to obtain a court-ordered injunction, which has blocked the abortion ban from taking effect.

Under his proposed change, a judge would have to find there is a “substantial likelihood” the party asking for the injunction would prevail on the merits of the case. Brammer also wants this new standard to be retroactive, applying to any injunctions or restraining orders issued under the old rule.

[READ: Utah’s abortion ban could go into effect if the Legislature passes this bill]

Third District Judge Andrew Stone had blocked the state’s ban on most abortions while Planned Parenthood’s challenge to the law works its way through the courts, citing “serious issues … which should be the subject of further litigation.”

Attorneys for the Legislature asked the Utah Supreme Court to lift the injunction, but the justices declined. With the trigger law barred from being implemented, another law banning abortions after 18 weeks is in effect.

But that “serious issues” provision Stone cited in his injunction is the language that Brammer seeks to wipe out. If he succeeds, Utah’s bill banning almost all abortions — except in cases of rape or incest that have been reported to police, a “uniformly lethal” fetal deformity, or to prevent the death or major, irreversible harm to the mother — might take effect.

Or it could spark a whole new round of legal challenges which may or may not be successful, according to the memo drafted by Associate General Counsel Jacqueline Carlton that was obtained by The Salt Lake Tribune.

Carlton’s memo acknowledges that the Legislature has the authority to change rules for the court with a two-thirds vote. The problem, however, arises by trying to make the language retroactive — something that has not been tested by the courts.

“A Utah court could possibly conclude that the retroactive application of the amendments in HJR 2 violates the separation of powers and judicial power provisions of the Utah Constitution,” Carlton wrote in the memo, which was requested by House Minority Leader Angela Romero, D-Salt Lake City.

Plaintiffs challenging the joint resolution’s change would likely argue that the Legislature would be overstepping its powers and infringing on “core powers” designated to the courts by the Utah Constitution, which “cannot be exercised by another branch.”

If the new provisions in HJR2 are seen as invalidating injunctions currently in effect, Carlton wrote, “the retroactive application could undermine the role of the judiciary by overturning a decision of a judge and the judge’s interpretation of the law at the time a preliminary injunction was issued.”

But it is unclear how the courts would treat the new provisions because there is no case law directly on that issue.

“We have the three branches of government for a reason,” Romero told me Tuesday. “For me, it’s important to respect the balances between the branches of government and let them do their job.”

Resolving the dispute is going to mean more costly litigation, she said, and if the bill really isn’t about the abortion ruling — Brammer has refused to say if that was his intent — then there should be no reason to rush it through or make it apply to past rulings.

Brammer’s bill is scheduled to be presented to a House Judiciary Committee on Wednesday afternoon.

He told me Tuesday that he has a revised version of the bill that he thinks resolves the issue by letting parties ask the court to reconsider an injunction under the new standard instead of a blanket, retroactive reversal of the orders.

“The motion for reconsideration would be considered under the amended rule,” Brammer said, a change he believes resolves the issues raised in the memo.

It might, or it might not.

Ultimately what is certain is that, as Romero noted, this will end up in more legal wrangling and cost Utah taxpayers — who are already paying $700 an hour for outside lawyers handling the abortion case — even more money while the Legislature once again ventures blithely into uncharted waters.

Update, Jan. 17, 8:30 p.m. • This story has been updated to add a comment from Rep. Angela Romero.