Facebook Twitter

Utah abortion-restriction bill called a losing judicial bet

SHARE Utah abortion-restriction bill called a losing judicial bet
Karrie Galloway, director of Planned Parenthood Association of Utah, is angered that state legislators are tackling the abortion issue but aren't helping to prevent unintended pregnancies.

Karrie Galloway, director of Planned Parenthood Association of Utah, is angered that state legislators are tackling the abortion issue but aren’t helping to prevent unintended pregnancies.

Douglas C. Pizac, Associated Press

With two new President Bush-appointed justices on the U.S. Supreme Court, Utah is preparing to spend up to $4 million to defend a proposed law banning abortions that it hopes will lead to the overturn of Roe v. Wade.

It's a gamble that some constitutional law scholars say is a losing bet because the prevailing court case on abortion isn't the 1973 decision on Roe v. Wade, which made abortion legalized nationwide. It's the 1992 opinion in a case called Casey v. Planned Parenthood.

That case allowed states to place some restrictions on abortion. But it also reaffirmed a woman's right to an abortion established under Roe v. Wade and said states couldn't place an "undue burden" on women seeking an abortion.

Even if both Bush-appointed justices John Roberts and Samuel Alito "were hellbent on overturning it, they don't have a fifth vote," said Pam Karlan, a constitutional law professor at Stanford University. "Right now, on the Supreme Court there are not five votes to overturn Planned Parenthood versus Casey. ... It's absolutely clear that the current court would not permit a state to ban all abortions."

Karlan and others say it's highly unlikely the Supreme Court would even hear the case.

"If all the lower courts agree that this is unconstitutional, then the Supreme Court would probably react cautiously and not take it," said Robert Bennett, a constitutional law scholar at Northwestern University.

But Utah lawmakers seem intent on giving it a try. The state House may vote as early as this week on a bill to ban abortions except in cases of rape, incest or if the health of the mother is threatened.

Originally, the bill would have made abortions illegal in Utah only if Roe v. Wade were overturned. It was written in response to South Dakota passing a law last year banning nearly all abortions in an attempt to give the U.S. Supreme Court a case on which to overturn Roe v. Wade. The South Dakota law was later rejected by voters, but lawmakers there are giving it another try this year.

The multistate effort to ban abortions worries abortion rights advocates.

"Despite South Dakotans' clear rejection of an abortion ban in 2006, anti-choice legislators in Utah and other states continue to show that there's no way to predict where and when they will overreach in their attempts to interfere in personal, private medical decisions," Nancy Keenan, president of NARAL Pro-Choice America, said in a statement.

Utah's Republican-controlled Legislature has indicated it doesn't want to wait for another state to challenge Roe v. Wade.

"Somebody's got to step up and be the leader," said the bill's sponsor, Rep. Paul Ray, R-Clearfield.

Ray's bill easily cleared a House committee last week and has the support of leaders in the House and Senate. In the past, Republican Gov. Jon Huntsman Jr. has said he supports restricting abortions.

The future of the bill may be determined by whether the state is willing to spend millions to defend it. The state Attorney General's Office estimates it would cost $2 million to defend such a measure with in-house counsel; $4 million if outside lawyers are brought in.

"Everyone involved knows ahead of time this battle could be a costly one," said Paul Murphy, spokesman for Attorney General Mark Shurtleff.

State Rep. Steve Sandstrom, R-Orem, said it would be well worth the cost. It was his idea to position Utah as the challenging state to Roe v. Wade. His bill would create a trust to take in private donations to defend the law, with the public picking up the remainder of the tab.

"How do you put a value on the cost to defend life? I think the people of this state would be willing for us to do that," Sandstrom said.

Planned Parenthood Association of Utah director Karrie Galloway is outraged.

"I find it very disingenuous of these legislators to feel the most important thing they will do is to tackle this abortion law when they're doing nothing to prevent unintended pregnancy," she said.

Utah's lawmakers believe sex education should occur at the home. Ray contends there is no evidence sex education reduces unintended pregnancies. He equates abortion with murder and says pregnant women who don't want to be mothers should give up their babies for adoption.

In a year when Utah has a $1.6 billion surplus and a pro-life president has appointed new justices to the Supreme Court, Sandstrom believes now is the time to challenge Roe v. Wade.

"The whole business with the new people on the court, there is a chance," Sandstrom said. "With the current composition, I think there's one swing vote out there that can make the difference. I think it's (Justice Anthony) Kennedy."

Legal scholars doubt it. Kennedy wrote part of the Casey v. Planned Parenthood opinion that reaffirmed Roe v. Wade and created the "undue burden" standard.

The opinion said, in part, "Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure."

Kennedy and four other justices are on record supporting constitutional protection of a woman's right to choose abortion before a fetus is viable outside the womb, said Columbia University law professor Gillian Metzger.

"I personally haven't seen any indication suggesting those votes are likely to change," Metzger said. "But, we may have indications on that from the court's decision on the federal partial (birth) abortion act later this term. ... But we might not, because even if that measure is upheld as constitutional it doesn't indicate that there aren't still five votes for a constitutional right to choose in some form."

The American Civil Liberties Union of Utah is fighting Ray's bill and will join in any lawsuit to block it from being enforced.

"Casey revived Roe v. Wade by essentially placing an 'undue burden' standard. Clearly, a ban is an undue burden. I would say Supreme Court case law clearly supports our position on this," said Margaret Plane, legal counsel for ACLU of Utah.

"I don't even need to count votes. The way the rule of law works, the way Supreme Court precedent works, they don't just up and overturn a 34-year precedent. It may be chipped away at, it may change, it may grow. But there's something called the rule of law that's not just upended because of a new justice or two."