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Jurists say abortion suit isn't frivolous

A class-action lawsuit challenging the constitutionality of Utah's abortion consent law should not have been summarily dismissed as frivolous, a federal appeals court ruled Tuesday.

While attorneys on both sides had not fully analyzed the ruling by the 10th Circuit Court of Appeals, they said it appears to go to the question of legal costs and not the underlying law."The sole issue on appeal was the determination of whether the suit was frivolous," said Assistant Attorney General Mark Ward. "The practical effect of this ruling would appear to be to take away the costs awarded to the state."

In other words, the state can't collect the more than $81,000 in legal costs it was awarded after U.S. District Judge Dee Benson decided that the Utah Women's Clinic and other plaintiffs filed the suit in "bad faith."

At issue in the original suit was a 1993 amendment to Utah's abortion law requiring a woman seeking an abortion to give her "voluntary and informed written consent." Also, it mandated that the woman be provided with certain information at least 24 hours before the abortion is performed.

The Legislature adopted the informed consent requirement after the U.S. Supreme Court upheld a similar law in a case called Planned Parenthood of Southeastern Pennsylvania vs. Casey.

In light of the Supreme Court ruling, Benson said the Utah lawsuit was frivolous and filed in bad faith.

"Plaintiffs had no case from the beginning," he wrote. The U.S. Supreme Court's Casey ruling made it clear from the beginning that Utah's law was constitutional, he said.

Declaring that the clinic had wasted the court's time and the state's money with unnecessary litigation, he also ordered the plaintiffs to pay the state's legal bills.

When attorneys for the clinic asked him to rescind his decision, Benson responded by imposing even more sanctions "because of the additional frivolous arguments." The lawyers then appealed to the U.S. Circuit Court, which asked Benson to reconsider his ruling. Benson affirmed his earlier order, and the plaintiffs filed a second appeal.

In an eight-page order released Tuesday, a three-judge panel of the appeals court reversed Benson's orders and judgments on the question of frivolousness and vacated all awards of attorney fees and costs.

The judges said the Casey case upheld Pennsylvania's informed consent statute "while leaving open the possibility that a constitutional challenge to an informed consent provision in another jurisdiction could be successful on a different factual record."

Also, they cited the 10th Circuit Court's own ruling in another Utah abortion lawsuit, Jane L. vs. Leavitt, in which the judges discussed the standards for determining whether legal theories are frivolous for the purpose of awarding attorney's fees.

Based on those cases, the judges said, "Each of the parties is ordered to bear its own attorneys' fees and costs."