Polls show that the vast majority of Americans have a nuanced perspective on abortion that differs more on framing than substance.

For example, a poll conducted by Gallup shows that support for abortion drops off dramatically from the first trimester to the second and third, and support for later term abortions is largely limited to special cases (rape or incest, health of the mother, serious issues with the developing fetus, etc.) regardless of party identity. In a poll conducted by the Deseret News/Hinckley Institute of Politics, only 10% of Utahns agreed that abortion should be illegal in all cases with no exceptions, another 46% believed that exceptions should exist for rape, incest, and health of the mother, and 37% believed abortions should be broadly available through at least the point of viability. 

When Pew asked follow-up questions, however, they found that nearly 23% of those who initially took a hardline stance (abortion should be illegal or legal in all circumstances) later softened their stance and agreed that at least some exceptions should apply. And, according to a recent Planned Parenthood poll, 86% of Utahns believe that decisions about pregnancy related healthcare should generally be made by individuals in consultation with their doctors without involvement of the law.

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With the overturn of Roe v. Wade, Utahns are now free to redesign our state law in a way that balances the interests of mothers and unborn fetuses. In that light, I would like to highlight a few considerations that I hope will be taken into account as we undertake that task. 

First, health-of-the-mother exceptions sometimes fail to protect women because medical providers are faced with an unfair choice: (1) they can take on essentially no legal risk by refusing to help a woman who, in their good-faith professional opinion, needs health care that could conceivably be prohibited, or (2) they can provide the health care and take on extraordinary legal risk.

A self-serving health provider will choose option (1) in all but the most clear-cut of cases. Some providers may not be permitted to exercise their medical judgment at all, or may be forced to delay treatment, because the organization they work for adopts unyielding policies that are designed to minimize legal risk. As a result, some women will die or suffer avoidable adverse health impacts.

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My suggestion: Give medical providers a limited liability shield. Include an exception for conduct that constitutes “gross negligence” or “intentional disregard of the law”, but otherwise, let health providers do their jobs.

A second problem is that some health providers refuse to perform abortions in cases of rape or incest because those exceptions are uniquely difficult for them to apply. How do you prove rape or incest, especially to someone who is not used to evaluating evidence and making legal determinations?

This issue can be addressed by: (1) allowing abortions to be performed for a period of time early in pregnancy without a specific reason, or (2) allowing providers to rely on a signed statement attesting that the patient has been a victim of rape or incest. Again, exceptions for “gross negligence” or “intentional disregard of the law” can prevent abuse.

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Third, a number of states are adopting or considering statutes that not only ban abortion within state borders, but that attempt to bar women from traveling out of state to obtain an abortion in a state where it is legal. These statutes not only target women, but in some cases target out-of-state health providers, employers or other third parties (who are all complying with local law) who may help provide access to the health care (for example, some employer health plans cover related travel).

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While many of these laws may be unconstitutional (see, for example, Justice Kavanaugh’s concurring opinion in Dobbs regarding the constitutional right to interstate travel), in the short term, they can impose enormous compliance and litigation costs on multistate employers and healthcare providers (which ultimately get passed on to the already-overtaxed economy, inflating health insurance costs and reducing wages), in addition to increasing health risks for women whose treatment may be delayed or denied as a result.

In short, it is possible to balance competing interests and design the law in a way that makes sense for Utah. Let’s do it. 

Peter Daines is an attorney who advises employers regarding the administration of employee benefit plans. Peter studied law and constitutional studies, mathematics and sociology at Utah State University before getting his Juris Doctor and an LL.M. in Taxation at Georgetown University Law Center. Previously, Peter clerked for Judge Chiechi on the United States Tax Court and practiced employee benefits law at another law firm. Any opinions expressed herein are solely those of the author.

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