Two months ago, the federal court in Utah made its final ruling in the ACLU suit challenging Utah's abortion laws. The court upheld 71/2 of the nine laws attacked by the ACLU (about an 85 percent success rate).
Law restricting fetal experimentation, requiring protection of viable fetuses, prohibiting most abortions after 20 weeks and many other provisions were upheld. The only laws invalidated were a 1974 spousal notice requirement and part of a 1991 law forbidding elective abortions before 20 weeks.Both the ACLU and Utah may appeal. The ACLU could appeal from the ruling that 71/2 of the abortion laws were constitutional. Utah may appeal from the ruling that 11/2 provisions are unconstitutional.
A new Legislature, governor and attorney general took office just two weeks after the ruling in the abortion case. Since then, the politicians, rather than the lawyers, have been in charge of the Utah abortion case. That has not made matters any better.
In an effort to avoid the controversy and cost of an appeal, Gov. Mike Leavitt quickly announced that if the ACLU would not appeal, he would not appeal. But he warned that if the ACLU did appeal, he would appeal vigorously also.
Recently, the ACLU filed its notice of appeal. But Utah has not filed a notice of appeal. Rather, some politicians in the Legislature, in the governor's office and in the attorney general's office have been trying to fix a political solution to the controversy. That cannot lead to any responsible solution.
The effort to resolve a profound constitutional issue by political manipulation is misguided. The politicians should step out of the case and let the lawyers and the courts resolve the case professionally, without political maneuvering.
Utah's interests will suffer if the litigation is politicized. For instance, one political ploy proposed by some politicians would have Utah just file a token appeal, then "stay" the appeal (put it on hold) while politicians broker a political solution. That would cause grave disadvantage for Utah's position in the case.
Under the current law, Utah has won 85 percent of the suit. But Kathryn Kendall of the ACLU has repeatedly stated that the ACLU is presently engaged in litigation around the country to change the existing law. In the meantime, President Clinton will appoint more than 100 new federal judges using his pro-choice litmus test.
If the state waits a year or two to litigate its appeal, the law may change in a way that is unfavorable to Utah's position. If Utah appeals now, under current law, Utah is much more likely to win than if the case is delayed for a year or two.
If an appeal is postponed, Utah could have to pay the ACLU possibly hundreds of thousands of dollars more in attorneys' fees. Utah, as the prevailing party, does not have to pay anything on the issues it wins, and under present law, it has won 85 percent of the case. But if it loses on appeal, it has to pay for the ACLU's attorneys fees both in the district court and in the court of appeals.
The longer the state waits to proceed with the appeal, the more it also will cost for attorneys' services to defend the Utah law. Every month that passes, more cases are decided that the lawyers must read and deal with in their briefs.
It would be inexpensive to write the brief in the court of appeals now because the briefs filed in the district court are current. If Utah waits, the briefs will have to be reresearched to update the new cases.
The attempt to stay the appeal would cost Utah valuable negotiating advantage and litigation dominance. It also could be an abuse of judicial process. The court of appeals is not supposed to be used as a tool in the ACLU's "hostage-taking" techniques. To stay an appeal to manipulate the legislative process entwines the courts in political processes which is inappropriate for an independent judicial body.
What good does it do to pass laws if elected officials are not going to defend them? What good does it do to successfully defend Utah's laws if politicians are going to abandon the defense on appeal?
It is time for Leavitt to keep his promise to vigorously defend Utah's abortion laws. It is time for Attorney General Jan Graham to fulfill her campaign promise to vigorously defend Utah's abortion laws, even though she personally dislikes them.
Legally, Utah has good grounds for appealing from the ruling that struck the 11/2 provisions it lost. For instance, the recent Casey decision of the Supreme Court emphasizes the importance of the record in deciding whether abortion laws are an undue burden.
Utah's spousal notice law has been in effect for 18 years, and the record shows that it has never barred a married woman's access to abortion. Since the record shows that Utah's spousal notice law imposes no burden, it clearly is not an undue burden and should be upheld.
Likewise, there has been no Supreme Court holding that direct prohibitions of abortion (like Utah's 1991 prohibition of abortion before 20 weeks) are unconstitutional since 1973.
It is time to quit playing politics with this lawsuit. It is time for the politicians to turn the case back over to Mary Anne Wood and Utah's successful defense team. It is time to put professionalism and principles above politics. It is time to get on with the appeal.