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JUDGE ORDERS CLINICS TO PAY $73,507 FOR `FRIVOLOUS’ SUIT

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Utah's two abortion clinics must pay Utah $73,507 for the time and money state lawyers spent defending Utah's 1993 abortion law against the clinics' lawsuit, a federal judge has ruled.

U.S. District Judge Dee Benson gave the state all the fees it has requested except $4 in costs. In the same ruling, Benson denied the clinics' request that he reconsider his February ruling upholding the 1993 law and ordering the clinics to pay the state's fees.Benson's ruling, made public Wednesday, sent "a clear message" to the clinics that its lawsuit had no merit, said Assistant Utah Attorney General Mark Ward. Hopefully, the clinics and their New York lawyers got the message, and there will be no further challenges to the law, he said.

Attorneys with the New York-based Center for Reproductive Law & Policy were stunned by the ruling.

Janet Benshoof, president of the center, called the ruling "the most unprecedented and unorthodox ruling that I have received or even heard of in my 20-year career."

The lawyers at the center represent Utah's two abortion clinics. They had not heard of or seen the ruling when contacted by the Deseret News for a response.

Benshoof said she wants to review the ruling before making further comment.

Benson also made it clear that his February ruling did not say that Utah's 24-hour waiting period was constitutional only if women could make the first contact with a clinic or doctor by phone.

The law requiring a 24-hour wait between contacting a clinic and getting an abortion would be constitutional even if that first contact had to be in person, Benson wrote. "In short, both possible interpretations of the statute's requirement . . . were clearly constitutional," he wrote. "The state may now chose to enforce the statute as it sees fit."

That won't change the way Utah does business, said Utah Solicitor General Carol Clawson. The state and the clinics had agreed prior to Benson's February ruling that contact by telephone would be acceptable. It still is, she said.

Benson also asked state attorneys to submit another fee application seeking reimbursement for time spent replying to the clinics' motion for reconsideration as well as time spent preparing the first fee application. The state has 20 days to submit the second application.

In his February ruling, Benson criticized the clinics for filing a frivolous lawsuit that wasted the court's time. Ordering the clinics to pay the state's fees is the court's way of punishing someone for wast-ing the court's time.

In this latest ruling, Benson explained why the clinics had misused the court. "The primary issue now before the court has nothing to do with abortion. It has everything to do with the proper use of judicial resources," he wrote.

Benson said he would abuse his judicial discretion if he didn't rule that the suit was frivolous. "To allow this type of action without at least requiring the (clinics) to pay the other side's fees would be to encourage this type of misuse of the courts in the future," he wrote.

The 1993 Utah Legislature passed a law requiring women to wait 24 hours after first contacting a clinic before getting an abortion. The law also required clinics and doctors to offer the women information about a developing fetus, adoption, etc.

The Utah Women's Clinic and the Wasatch Women's Center filed a suit challenging the constitutionality of the law.

The Legislature "slavishly" copied a similar Pennsylvania law that had been upheld by the U.S. Supreme Court, Benson wrote. "A comparison of the two statutes reveals that they are nearly word-for-word identical," Benson wrote. Lawmakers clearly tried to avoid placing any restriction on the right to abortion that hadn't already been upheld by the Supreme Court.

When the clinics challenged the law, they were required to show that Utah's law would have a different and more severe impact here than in Pennsylvania, the judge wrote. But the clinics couldn't do that.

"As this lawsuit unfolded before the court, it became painfully apparent that (the clinics) never should have brought this case." The clinics' suit was little more than an attempt to get a Utah federal court to reverse a U.S. Supreme Court decision, he con-cluded.

This ruling, like the February ruling, was harshly critical of the clinics' legal tactics. The clinics tried to get Benson to offer an advisory opinion on the legality of women making the first contact with the clinic and getting the necessary information by phone, instead of in person. The federal courts are expressly forbidden from offering advisory opinions, he wrote.

The clinics also failed to understand the difference between arguments that belong in court and arguments that belong in politics, he wrote. "Such tactics exhibit a severe misunderstanding of the role of the judiciary," he wrote.

In short, the clinics used their lawsuit to delay enforcement of the state's new law, gain publicity for a political cause and force the state into costly litigation, Benson wrote.

By requiring the clinics to pay the state's fees, the clinics "in a small way" have compensated for the damage they caused, Benson concluded.

The state and the American Civil Liberties Union are still squabbling over fees in the case challenging Utah's 1991 abortion law. U.S. District Judge J. Thomas Greene denied the ACLU's request for several hundred thousand dollars in fees because he said many of the ACLU's arguments were frivolous. But he also denied contract attorney Mary Anne Wood's request for high fees because a U.S. Supreme Court ruling struck down the heart of the Utah law.

Greene denied the bulk of both sides' fees, then awarded similar amounts to each side. After off-setting the two awards, the state will only have to pay the clinic's lawyers $2,700.

The ACLU has appealed that ruling to the 10th Circuit Court of Appeals.

Ward said he "wouldn't rule out" a similar appeal on this case. "But I think they have to worry about the risk of running up more fees they could end up paying if they appeal this. We will certainly want to recover the value of our time spent defending the appeal."