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What’s next for Utah in wake of leaked SCOTUS draft abortion decision?

Will it embolden Utah lawmakers to take trigger law even further?

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Protesters chant during a rally for abortion rights at Washington Park in Salt Lake City on Tuesday, May 3, 2022.

Protesters chant during a rally for abortion rights at Washington Park in Salt Lake City on Tuesday, May 3, 2022.

Mengshin Lin, Deseret News

Like a bomb, the leaked U.S. Supreme Court draft decision sent reverberations across the country, igniting renewed debate over reproductive rights and what the future would hold for a state-by-state, patchwork legal landscape of abortion access.

Utah is one of 13 states that already have trigger laws in place to ban abortions if the landmark case Roe v. Wade is overturned.

But Utah’s 2020 trigger ban — with its exemptions for rape or incest, risk to the mother’s life and certain fetal defects — doesn’t go as far as some other states like Texas or Oklahoma.

So could the potential Supreme Court decision perhaps embolden conservative Utah lawmakers to expand the trigger law even further and maybe chip away at the exemptions?

It’s something House Minority Leader Brian King, D-Salt Lake City, said he’ll be watching for — especially given the lurch to the right the Utah Republican Party seemed to take at its most recent state convention last month, when delegates showed preference to more far-right candidates.

“It wouldn’t surprise me at all to see people calling on the Legislature to do a special session ... that addresses some of these feelings on the part of hardcore ideologues within the Republican Party to say, ‘We want to put in place the most restrictive reproductive rights bill possible in the state of Utah,’” King said.

“Today’s Republican Party is, ‘We can’t come down on reproductive rights too harshly,’” King added. “So is Utah in the competitive running to see if we can out-Texas and out-Oklahoma those states? You bet we are. In the minds of a bunch of Republican legislators, you bet.”

The sponsors of Utah’s 2020 trigger law say they believe SB174 struck the right balance, but they’re also leaving the door open to future conversations about whether to “refine” or tweak the trigger law in the future — as they wait, of course, for the official ruling from the Supreme Court.

“At the time we passed SB174, there were a lot of conversations about whether or not the exemptions were wide enough to blow a hole in the policy. And that’s something we’re going to have to monitor over time,” Sen. Dan McCay, R-Riverton, told the Deseret News on Tuesday.

An anti-abortion flag is pictured during the annual March for Life in Salt Lake City on Jan. 22, 2022.

An anti-abortion flag is pictured during the annual March for Life in Salt Lake City on Jan. 22, 2022.

Mengshin Lin, Deseret News

A ‘tough balance’

McCay and the bill’s House sponsor, Rep. Karianne Lisonbee, R-Clearfield, both said the debate around Utah’s abortion law is likely to surface again. While they said they weren’t aware of a widespread conservative Utah movement to roll back all of the exemptions, there has already been discussion around whether to tweak them.

“There will be a need to monitor the exemptions and make sure that they are refined enough to appropriately balance the right abortion policy in the state of Utah,” McCay said.

McCay said some issues that have come up that might need clarifying include whether there may need to be a limitation on how late into a pregnancy an abortion would be allowed if the mother’s health is jeopardized, or whether there needs to be a clearer definition on “what counts as rape and incest” and if a case would need to be “fully adjudicated as rape.” On the latter, McCay said he doesn’t think it should go that far, “but there are some that feel that’s where it should go.”

Above all, though, McCay said it’s premature to be debating this before the Supreme Court actually makes a ruling.

“Instead looking at a hypothetical on how we might change things, look at the actual Supreme Court decision in front of us and start making appropriate policy decisions based on what the court restores to the states as far as that decision-making power,” he said.

“It’s tough to balance,” he added. “Everyone’s interested in the policy for sure. But the one person who is voiceless in this process is the unborn. And we need to make sure we’re doing all we can to protect them.”

Is there a movement brewing to expand the trigger law?

At least some delegates from within the Utah Republican Party have signaled interest in moving away from abortion exemptions. A proposed platform amendment would have removed the language making exemptions to preserve the life of the mother, or in cases of rape or incest, instead replacing it with language to “encourage adoption.”

The party vote on the platform amendment never happened, with delegates lacking the quorum needed in order to take the vote in the waning hours of the convention — to the disappointment of the delegate who put forth the amendment, Bob McEntee, of Weber County.

McEntee said he proposed the platform change so the party would “deemphasize” exemptions and instead “emphasize adoption.” The aim, he said, was to “go silent” on exemptions and “leave it more up to individuals rather than just being a reflection of one religion in the state.”

Utah’s predominant religion, The Church of Jesus Christ of Latter-day Saints, opposes abortion but allows exemptions for its members when pregnancy results from rape or incest, when a “competent physician determines that the life or health of the mother is in serious jeopardy,” or when a “competent physician determines that the fetus has severe defects that will not allow the baby to survive beyond birth.”

McEntee said “Catholics don’t believe in any exemptions” while “Evangelicals might be a little mixed. So we just wanted it to be a reflection of the GOP, not any one church’s doctrine.” While he said he believed there would have been enough support to pass the amendment had it come to a vote, McEntee also said there were different opinions on the matter within the party.

It’s important to note a platform language proposal is not the same as a legislative effort — but it does indicate at least some members of the Utah GOP are grappling with the exemption issue.

Lisonbee said she has heard of some Utahns “pushing to have an abortion policy restriction that doesn’t include any exemptions.”

“I don’t think that will pass in Utah,” Lisonbee added. “But I could be wrong.”

The exemptions currently outlined in Utah’s trigger law are “well-balanced” in weighing the “different policy nuances surrounding abortion law,” Lisonbee said. If there are any tweaks to the law, she said they likely won’t “materially change the policy direction,” but rather focus on addressing “some concerns that maybe the language wasn’t as clear as it could be and that maybe it didn’t match the overall abortion statute.”

“So that may be something that happens,” Lisonbee said.

Senate President Stuart Adams, R-Layton, also said he believes SB174 “strikes the right balance.” He said he’s not seen “any effort to try to have a special session,” though he expects the debate to surface during the next general session in January.

“If it needs tweaking in the future, I assume we’ll do that,” Adams said, though he called it a “good bill” with “good reasons for those three exemptions.”

If the bill takes effect, Adams said lawmakers will be able to learn as it’s administered whether it will need to be “refined.”

What do anti-abortion groups think?

Gayle Ruzicka, a prominent conservative power broker on Utah’s Capitol Hill as president of the Utah Eagle Forum, told the Deseret News she supports SB174 as written, and she doesn’t believe removing the exemptions would fly.

“That is a good bill, and I hope that it stays just the way it is,” she said.

Ruzicka noted the bill passed the 2020 Utah Legislature on a “strong vote” in both the House and the Senate — though some moderate Republicans joined Democrats in voting against it. She also said SB174 was the product of collaboration with a coalition of anti-abortion groups that worked together on the issue.

“You know, not every group belongs to that coalition, but just about every group does and we worked together on this bill to begin with,” she said. “So I think as a whole the organizations will do as they always do, we’ll discuss it in our coalition, look at every detail and come up with a decision. And I see right now, anyway, sticking with what we have.”

Rep. Angela Romero, D-Salt Lake City, speaks at the Utah Capitol in Salt Lake City on May 3, 2022.

Rep. Angela Romero, D-Salt Lake City, speaks during a rally for abortion rights at the Utah State Capitol in Salt Lake City on Tuesday, May 3, 2022.

Mengshin Lin, Deseret News

A ‘bigger concern’

Rep. Angela Romero, D-Salt Lake City, issued a statement Tuesday expressing grave concern about the implications of the leaked Supreme Court draft decision, calling it an “unprecedented assault on everyone who can get pregnant everywhere.”

“Sadly, if this decision stands, Utah is one state where abortion services will be forced to move underground. Banning abortions won’t stop people from seeking them. Thousands of women will jeopardize their lives, and many will face devastating and lasting consequences for themselves and their families. In Utah, nearly half of the people who have abortions are already parents,” Romero said.

Romero said while she’s “definitely concerned” and will be on guard against any effort to restrict Utah abortions beyond what’s already outlawed in the state’s trigger law, her “bigger concern” is about how the law that’s already passed “will impact some of our most vulnerable community members.”

For Utahns who can afford to travel out of state for an abortion, statewide bans will only be an inconvenience. But for lower-income Utahns or already underserved minority populations, it will be a much bigger problem and push them to “go underground,” she said.

“Even if we were to make stricter guidelines here in Utah or we were to ban abortion completely, people are still going to get abortions,” she said. “And when people are put in desperate situations, they’ll take desperate measures.”

Ruzicka said the goal of anti-abortion coalitions have always been to “protect the unborn babies,” and that will continue to be the focus, along with “helping the mothers to get through difficult times and the care they need.”

“We’ve worked with the mothers to help them make these hard decisions and give them the help they need to get through that,” she said. “So I see we’re going to be working even harder doing those things, helping these mommies with their babies, because we want to do that. ... They need to be supported through these times.”