Across the nation, both sides on the abortion issue are bracing for a U.S. Supreme Court ruling that could weaken or overturn the landmark Roe v. Wade decision and allow state legislatures to ban or impose strict limits on the procedure.
Many states, including Utah, already have “trigger laws” on the books that would take effect swiftly if the constitutional right to abortion is eroded. These laws would enact abortion bans that begin before viability or prohibit abortions with few exceptions.
Other states are supporting the right to an abortion and a few are preparing to be safe havens for women seeking abortions.
The Supreme Court heard arguments on Dec. 1 in Dobbs v. Jackson Women’s Health Organization, a challenge to the constitutionality of a Mississippi law that prohibits abortions after 15 weeks of pregnancy with a few exceptions. The state also is asking the court to end federal protections for abortion.
A decision is expected by the end of the court’s term in June.
On Monday, Politico reported it had obtained an initial draft majority opinion that showed the Supreme Court has voted to strike down Roe v. Wade.
Conservative activist Gayle Ruzicka, Utah Eagle Forum president, was on the steps of the Supreme Court in Washington, D.C., during the proceeding and she plans to be in the same place when the ruling is announced.
“Like everybody else that cares about this issue, I’m praying that they will rule in favor of the babies and Roe v. Wade will be overturned,” Ruzicka said. “I believe they are going to rule for babies and their mothers.”
She also said there are private organizations and government programs to help pregnant women and mothers.
“Once abortion isn’t legal and these women are having their babies, there is always going to be help for them,” Ruzicka said. “Stopping abortion is about one, saving the baby, and two, about saving the mothers from these terrible mistakes and being there to help them. It’s always been about helping the mothers and so it’ll continue to be about helping the mothers.”
Karrie Galloway, president and CEO of Planned Parenthood Association of Utah, is worried about the impact on women and their families if the right to an abortion is overturned. She said the majority of abortions in more advanced pregnancies were wanted pregnancies that went wrong.
“I want to point out that no one is passing laws to help families either manage their health care, provide more family planning, help people plan their families or in any way help them take care of the families that they already have,” Galloway also said.
The path to the Supreme Court
The Roe v. Wade opinion, handed down in 1973, found that the right to personal privacy includes the decision to terminate a pregnancy. The 7-2 decision – which struck down a Texas law that banned abortions except to save the life of the mother – said regulation of the right may be justified only by a “compelling state interest.”
In a 1992 decision, the case’s “essential holding” that women have a right to get an abortion was reaffirmed by the Supreme Court in a plurality decision. The ruling, in Planned Parenthood of Southeastern Pennsylvania v. Casey, also set an “undue burden” standard, which says a law is invalid if its “purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”
That ruling upheld provisions in a Pennsylvania law that required a woman seeking an abortion to give her informed consent, that a minor obtain parental consent for an abortion and that clinics provide certain information to a woman and wait 24 hours before performing the procedure.
In Mississippi, the state’s Gestational Age Act prohibits abortion after 15 weeks except in a medical emergency or cases of severe fetal abnormality. Fetal viability is typically considered to begin at the 24-week mark.
The act, which was passed in 2018, was blocked by a federal court judge and the 5th U.S. Circuit Court of Appeals upheld that ruling. The state then appealed to the Supreme Court.
The question before the justices is whether all pre-viability prohibitions on elective abortions are unconstitutional. However, lawyers for the state want to expand the case beyond that.
“The Supreme Court taking this case at all is a stunning development, but the state of Mississippi has gone even further and asked the Court to outright overturn Roe v. Wade,” the Guttmacher Institute, a reproductive rights research and policy organization, says in an analysis on its website. “It is not a foregone conclusion that the Court will cast aside five decades of precedent to overturn Roe and allow states to ban abortion. However, by even accepting the case, the Court has signaled that it is willing to revisit the legality of abortion.”
Targeting Roe v. Wade
With six conservative justices on the nine-member court, abortion opponents are hopeful that Roe v. Wade will be struck down.
Twenty-six states are certain or likely to ban abortion if the Supreme Court overturns or guts Roe v. Wade, according to the Guttmacher Institute.
In addition to Utah, those states are Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, West Virginia, Wisconsin, and Wyoming.
Under Utah’s current law, women must complete a state-mandated online education module and a face-to-face informed consent session and then wait 72 hours before they can get an abortion.
In 2019, the Utah Legislature passed House Bill 136, which banned elective abortions after 18 weeks of gestation. The ACLU of Utah Foundation and Planned Parenthood Association of Utah filed a lawsuit alleging that banning pre-viability abortions is unconstitutional.
A federal judge issued an injunction blocking immediate enforcement of the law and the suit has been on hold pending a Supreme Court decision in the Mississippi case.
Utah’s trigger law, Senate Bill 174, was approved in 2020 and bans abortions in almost all cases. They would be allowed when they are necessary to avert the death of the mother; if there is a serious risk of “substantial and irreversible impairment of a major bodily function” of the woman; the fetus has a defect that is “uniformly diagnosable and uniformly lethal” or has a severe brain abnormality that is uniformly diagnosable; or the pregnancy is the result of rape or incest.
The bill would take effect after a court of “binding authority” has held that a state can prohibit abortions at any time during the gestational period except in certain circumstances. Lawmakers would have to determine if the Utah law aligns with the Supreme Court ruling in the Mississippi case and go into session to make changes to their statute if necessary.
HB136’s sponsor, Rep. Cheryl Acton, R-West Jordan, said she’s not sure which of the bills would go into effect if Roe v. Wade were struck down but she would like the trigger law to be enacted.
“What we’re hoping for is that each state will then have abortion law in their state so they’ll decide what to do through their elected representatives,” Acton said.
Rep. Karianne Lisonbee, R-Clearfield, the floor sponsor of the trigger bill, also wants decisions about abortion left to state constituencies and state legislatures. Before Roe v. Wade, Utah’s abortion statute mirrored the policy in SB174, she said.
“Ultimately, I reject the kind of philosophy that abortion activists embrace that places value on individual human life only when it is wanted by another human, has reached a certain age, or has certain abilities,” Lisonbee said. “All human life has potential.”
‘This status quo is untenable’
Utah has joined 23 other states in a friend-of-the-court brief in support of Mississippi that says the Roe and Casey rulings created and preserved a nonexistent constitutional right to elective abortion.
“Abortion is a ‘right’ in search of a constitutional home,” the brief says. “It is found nowhere in the text of the Constitution, and the majority in Roe did not claim otherwise. Instead, the Roe Court determined that abortion fell within the right to privacy, which it admitted was not ‘explicitly mention[ed]’ in the Constitution.”
Utah Solicitor General Melissa Holyoak says in a written statement that the state is supporting Mississippi’s petition to the Supreme Court because of the similarity of their laws and the fact that both are constitutional.
“Nothing in the Constitution prevents states from enacting reasonable measures to safeguard the dignity of all human beings, including the unborn,” the statement says.
Sen. Mike Lee and two other Republican senators, Josh Hawley of Missouri and Ted Cruz of Texas, also have filed a friend-of-the-court brief in support of Mississippi. They argue the Casey ruling establishing the undue burden test effectively replaced Roe v. Wade and has produced inconsistent outcomes.
“This status quo is untenable,” the senators’ brief says. “Where a legal doctrine has repeatedly failed to offer clarity – where it has proved unworkable in the past and will likely engender unpredictable consequences in the future – its existence constitutes an open invitation to judges to interpret it according to their own policy preferences, usurping the constitutional prerogatives of the legislature.”
Supporting women seeking an abortion
State laws and constitutions in 15 states and Washington, D.C., protect abortion rights, Elizabeth Nash, Guttmacher’s principal policy associate on state issues, said. The states are California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington.
The states that are not expected to ban abortion within a year are Alaska, Colorado, Kansas, Minnesota, New Hampshire, New Mexico, North Carolina, Pennsylvania, and Virginia.
Stateline, an initiative of The Pew Charitable Trusts, reports that some blue states are enacting new laws to create abortion havens. A package of bills, sponsored by the California Legislative Women’s Caucus and other top legislative leaders, is based on 45 recommendations for expanding access to abortion for state residents and those living elsewhere outlined in a December report from an advisory council convened by Gov. Gavin Newsom.
Galloway said Utah women could get an abortion in nearby states but some will not have the means to travel.
“We’re only talking about privileged people,” she said. “There are a lot of people in this world who are not privileged enough to move around for their health care and that seems very unfair and unequitable.”
