Utah is one of 13 states to have passed a “trigger law” concerning abortion, meaning a law that would come into effect only if Roe v. Wade were to be overturned by the Supreme Court, as seems likely to happen this month.

Such a decision would return abortion law to the states, and it is clear the states are not of one mind. Nine additional states are considering trigger bills that would restrict abortion, while on the other side, 16 states and the District of Columbia have enshrined the right to abortion in law. Some blue states are considering declaring themselves sanctuary states for abortion provision; New York just passed such legislation.

All “trigger law” states will restrict abortion more than they do now, and frankly, most of the trigger laws are restrictive in the extreme.

For example, the trigger laws in Alabama, Arkansas, Florida, Kentucky, Louisiana, Missouri, Oklahoma, Ohio, South Dakota, Tennessee and Texas have no exceptions for either rape or incest. Mississippi has no exception for incest. The trigger laws in Idaho, South Dakota and Arkansas have no exception for serious health consequences to the mother if she continues the pregnancy.

Florida’s trigger law explicitly states that serious adverse psychological consequences cannot be considered justification for abortion.

Louisiana is thinking of applying criminal penalties not only to doctors who perform abortions, but also women who seek them, and this may wind up targeting women who have suffered spontaneous miscarriages and stillbirths, as such laws have done in Latin America. Louisiana’s ban would also prohibit the sale of medical-abortion drugs by out-of-state physicians to its citizens.

Texas, where I live, will ban abortion after six weeks in the post-Roe world. The state has a new approach in which anyone who helps a woman procure an abortion can be sued by private citizens for $10,000 plus attorney fees. Also, abortifacient drugs cannot be mailed, but only provided in person by a doctor. There is also talk of enabling individuals to sue anyone who helps a woman travel out of state for an abortion.

Utah — thankfully — looks significantly different from the other trigger-law red states, despite the fact that in Utah abortion will be deemed prohibited at any stage of a woman’s pregnancy; that is, there is not even the six weeks’ period offered by Texas.

Utah’s trigger law, passed in 2020, continues to carve out exceptions that appear to most Americans to be common sense, such as exceptions for rape, incest, life of the mother and other serious medical complications — all of which are exceptions favored by a majority of Americans, according to recent surveys

Utah also permits abortion if the fetus has a lethal defect or a “severe brain abnormality,” not including Down’s syndrome, cerebral palsy, spina bifida and other conditions that do not result in a vegetative state. Utah’s law also explicitly makes clear that the state does not consider removal of an ectopic pregnancy to be an abortion, thank goodness.

The Utah law makes no reference to “medical abortion” that is not performed with a physician’s oversight, in which a woman uses drugs in the first few weeks of pregnancy to induce abortion. The law also does not target women leaving the state for an abortion or obtaining abortifacient drugs by mail from other states. However, the law does state that an abortion may only be performed by a physician, thereby leaving some unclarity as to whether women inducing their own abortions  can be found guilty of a second-degree felony or not. This lack of clarity about medical abortion may need urgent clarification by the state legislature when the Supreme Court issues its decision.

Despite its imperfections, Utah’s trigger law looks much more humane than those of other red states.

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This is primarily due to the nuanced position of The Church of Jesus Christ of Latter-day Saints, the religion of a little more than 60% of Utah’s population. The church has taken a position that recognizes that there are two parties — the mother and the fetus — the state must be concerned with when abortion is the issue. It’s not an all-or-nothing proposition favoring the interests of one party over the other, as we see with some red states’ restrictive trigger laws on the one side, and blue states’ laissez-faire laws on the other.

The church’s position is very much in line with the thinking of the majority of Americans, who have always embraced a middle ground on abortion because real life is not cut-and-dried. The church’s position therefore cannot be characterized in the predictable terms often used by advocacy groups on either side of the debate.  

Thus, not unlike the Utah Compromise over gay rights, Utah has the chance to be a national leader among red states by articulating a more nuanced position that avoids extremism in the abortion debate.

The Utah Legislature and the governor should push back on any attempts to make Utah’s trigger law resemble more closely those of other red states; Gov. Spencer Cox is already standing pat on that score, and he is to be applauded for doing so.

But Utah could go farther in its articulation of a third way that bypasses extremism. For example, a proposed modification to Utah’s trigger law, not yet adopted, would extend the possibility of abortion to mothers younger than 14 regardless of whether incest occurred, as well as in cases where infection sets in due to prolonged ruptured membranes. The modification would also provide for the establishment of a 24-hour help line to link expectant mothers to assistance in their locality.

This is an excellent start in dealing with all the many issues that the male-dominated legislature did not anticipate when it passed Utah’s trigger law. It is not coincidental that the modification was proposed by a female legislator, and it’s time for the women of the Utah Legislature to offer their counsel, urgently, as the post-Roe world appears.

For example, women in Poland, where the law bans abortion almost completely, have found that their legislators never considered cases such as when a pregnant woman needs chemotherapy, or one twin in a twin pregnancy has died in utero. The law must be clear that physicians can and must act without fear of reprisal in such cases.

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There’s more that could be considered as well. Some note that Utah’s trigger law carries no budgetary provisions. That is an abdication of the state’s responsibility to assist women who find themselves in desperate straits as a result of Utah’s trigger law. Even that 24-hour help line proposed by Rep. Kera Birkeland will cost money to run, and there are many other services women facing an unwanted pregnancy in Utah will require, as well as the children born to them. The Legislature must responsibly anticipate what services will be needed and allocate funds in the state budget for these.

Then there’s a farther bridge, one highlighted by Cox when he said, “It takes two to make a baby, and too often, that burden falls disproportionately on the mother and not on the father. We need to hold men responsible.” As writer Gabrielle Blair rightly declares, “Men cause 100% of unwanted pregnancies.” Utah could also aspire to be a national leader on this aspect of the abortion situation — for no other state in the union, red or blue, is tackling that lynchpin issue at all.

In sum, the 2020 trigger law is not the end of the discussion about abortion in Utah; there’s much more to do, and it must be done soon.

Valerie M. Hudson is a university distinguished professor at The Bush School of Government and Public Service at Texas A&M University and a Deseret News contributor. Her views are her own.

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