A new argument surfaced in a daylong hearing Friday over whether or not Utah's abortion case should go to trial.
Attorneys for the American Civil Liberties Union said the law is unconstitutional because it forces a woman to endure a pregnancy she doesn't want, violating the 13th Amendment prohibiting involuntary servitude.By forcing a woman to be a "life-support system" to a fetus, the Utah Legislature is forcing her to undergo nine months of servitude to a fetus and a lifetime of obligation to the child, ACLU attorney Janet Benshoof argued.
"Can any male judge or Legislature know the totality of the pregnancy and childbirth experience on a woman?" said ACLU attorney Rachel Pine. "It is a sentence, if you will, of hard labor."
This is the first time the 13th Amendment - which was drafted to outlaw slavery - has been applied to a law regulating abortion, Benshoof said.
She even likened the symptoms of pregnancy - fatigue, nausea, backaches - to the symptoms of involuntary servitude.
ACLU lawyers also argued for the first time in court that Utah's new abortion law is unconstitutional because it mirrors the position of The Church of Jesus Christ of Latter-day Saints on abortion.
The five hours of arguments before U.S. District Judge J. Thomas Greene ranged from the complex to the sensational.
Impact on Utah clergy and counselors
State attorneys urged Greene to dismiss the ACLU's suit against the state because many of the plaintiffs - clergy and counselors - are not impacted by the law. Therefore they don't have legal grounds to bring the suit against the state.
Clergy who encourage women to travel to other states to receive abortions do not violate the law. Utah's new law only prohibits in-state abortion. Even clergy who help a pregnant woman get an abortion in Utah after the new law is passed won't be criminally prosecuted, said state attorney Anthony Quinn. The new law says women who obtain illegal abortions are immune from prosecution. So the people the women confide in - with the exception of the doctor who performs the abortion - would not be prosecuted, Quinn said.Although clergy might have some liability under certain interpretations of Utah law, such strict interpretations would violate the clergy's right to free speech and would not be used, Quinn said.
ACLU attorney Eve Gartner disagreed. "What today is religion will tomorrow be criminal," if Utah's law passes, she told Greene. She cited the case of the Rev. Robert Hare who was prosecuted for helping a woman obtain an illegal abortion even though the woman herself was not tried.
Clergy fear similar prosecution. "Their fear is real," Gartner said.
Resemblance to LDS beliefs
The Utah Legislature illegally attempted to forge LDS beliefs about abortion into state law, ACLU attorneys claim. "This ban codifies the Mormon Church's position on abortion to the detriment of other people and other religions in the state," Gartner said.
ACLU attorneys did not raise this issue earlier in the case because they did not realize how extensively the church and its beliefs were involved in the passage of the 1991 law, Gartner said. LDS officials released a formal statement outlining the church's stand on abortion just two weeks before the Legislature passed Utah's new abortion law. The statute "exactly matches" the church's stand on the issue, she said. The LDS Church's statement on the matter was submitted as evidence.
Gartner also recounted a legislative committee meeting in which one legislator recommended a change in the law which differed from the LDS Church's position on the matter. Roger Wilkins, the man who helped draft the law, replied, "I think it would be unwise for this statute to go beyond what the predominant religion holds," according to Gartner.
Even if LDS beliefs influenced lawmakers' passage of the bill, the bill is still constitutional, said Quinn. The U.S. Supreme Court ruled in a similar case that the Roman Catholic Church's heavy lobbying in favor of a bill banning the use of Medicaid funds for abortions did not undermine the constitutionality of that law, state attorney Mary Anne Q. Wood pointed out.
Even if Utah's law was deliberated crafted to reflect LDS beliefs, it would still be constitutional according to the Supreme Court ruling, Quinn said.
Fate of the ACLU lawsuit
State attorneys again urged Greene to rule on the merits of the abortion lawsuit before it goes to trial April 6. The U.S. Supreme Court in recent abortion rulings now recognizes a state's compelling interest to protect the life of the unborn, Wood told Greene.
Greene must decide if those recent opinions most accurately reflect the will of the high court, or if Roe vs. Wade does. If Greene concludes that Roe vs. Wade is the law of the land, then Greene should grant a victory to the plaintiffs without an unnecessary trial, Wood said. But if Greene concludes - as the state urges him to - that recent court opinions support Utah's right to protect it's unborn, then Greene should rule in the state's favor.
In either case, Greene has all the facts before him necessary to rule, Wood said.
Benshoof disagreed. The plaintiffs and the state disagree on various facts that should be aired at trial, she said. Besides, Greene does not have the testimony of the most important witnesses - the expert witnesses for either side - to review. That testimony is only scheduled for presentation before trial.