The state Attorney General's Office has agreed not to enforce a new law banning partial-birth abortions for at least 10 days and possibly until the statute passes a legal challenge.
The stipulation comes in response to a lawsuit filed Monday in U.S. District Court by the New York-based Center for Reproductive Rights, on behalf of the Utah Women's Clinic and the Planned Parenthood Association of Utah.
Assistant Attorney General Jerrold Jensen said his office informed lawmakers earlier this year, when the law was being considered, that it would likely take such an action if faced with a constitutional challenge to the statute. The law was to go into effect Monday.
"We had anticipated (the lawsuit) coming, and frankly we know what the outcome of the (temporary restraining order) hearing would be, so we agreed," Jensen said. "(The) decision is based upon a plan that we talked about in February with the Legislature."
U.S. District Judge Paul Cassell signed the temporary restraining order Tuesday. It is effective for 10 days, at which time the Attorney General's Office must decide whether to stipulate to a similar preliminary injunction or argue the issue before Cassell.
A preliminary injunction would prevent the law from taking effect until a judicial decision is issued in the case.
The new Utah law defines partial-birth abortion as a procedure during which a living fetus is delivered to the point of being partially "outside the body of the mother" and is then killed. It is modeled after the federal Partial-Birth Abortion Act, which President Bush signed into law last year.
Legal challenges to the federal law have been brought in federal courts in San Francisco, New York and Lincoln, Neb. Decisions are pending in each of the three cases.
With the outcome of those cases uncertain, and a local lawsuit all but inevitable, the Attorney General's Office counseled lawmakers to delay the legislation at least one year.
"The position of this office was not to pass the bill and wait and see what the federal decisions are going to be," Jensen said.
Despite the warning, the bill passed both the House and Senate by wide margins.
House Majority Leader Greg Curtis, R-Salt Lake, voted in favor of the law, fully aware of the constitutional challenges to the federal statute and the likely similar challenge in Utah's federal court.
"It is not uncommon when you're dealing with controversial, emotional statutes that people threaten suit," Curtis said. "The fact that somebody opines that that's going to be unconstitutional should not be a reason to not act. You need to evaluate what's at stake . . . abortion is probably one of the most significant policy issues we deal with."
Curtis said he is comfortable with the action taken by the Attorney General's Office so far, and would likely not object to a similar stipulation with regards to a preliminary injunction.
The federal statute has been similarly enjoined pending a decision in the three cases, Jensen said.
Gov. Olene Walker, who approved the bill last month, is also satisfied with the direction of the Attorney General's Office, spokeswoman Amanda Covington said.
Walker signed the bill into law last month with an understanding that it would be stayed pending litigation.
"She stands firm in her commitment to protecting the right to life," Covington said.
Monday's suit faults the new law for banning "partial-birth abortion," which it says is not a recognized medical term, and for defining the procedure so broadly "as to chill physicians from providing the safest and most common method of abortion used in the second trimester of pregnancy prior to viability, the dilation and evacuation (D&E) method."
The law fails to make an exception to protect the health of a mother, the lawsuit states, allowing the procedure only when necessary to save a woman's life.
The ban was one of two controversial abortion laws passed during the 2004 Legislature. The other, which also went into effect Monday, would make it illegal for any facility that receives state funding — "directly or indirectly" — to perform any abortion. The state's hospitals and clinics have been left to decide whether they should risk losing state funding and continue offering abortions or turn away patients who might need an abortion for their health or safety.
Tuesday's temporary restraining order has no impact on the funding law.
E-mail: awelling@desnews.com