Utah now has the toughest anti-abortion law in the nation, one that is unconstitutional in light of U.S. Supreme Court precedent, according to Utah Attorney General Paul Van Dam. But most lawmakers and Gov. Norm Bangerter hope the measure will be upheld by the court.
The emotional issue of abortion moved through the Legislature with speed, but not without pain, this week as Republican and Democratic legislators dealt with what many said was the most difficult decision they've made in public life.The issue will soon belong to the courts.
"We'll file suit well before the bill becomes law in 60 days," said Michele Parish-Pixler, executive director of the Utah chapter of the American Civil Liberties Union.
The new law, which was passed by the Legislature Friday morning, will certainly be stayed by a federal court judge and ruled unconstitutional in a federal trial. The appeal will eventually reach the U.S. Supreme Court, which in two or three years will decide its constitutionality. In the meantime, abortions will be conducted in the state as they have been for 14 years.
Richard Wilkins, a BYU law professor who has written several briefs for abortion appeals and is considered a leading scholar on the Supreme Court and abortion, told House Republican and Democratic caucuses Thursday the new law "has a reasonable chance" of being upheld in the high court.
Parish-Pixler and those opposing restrictive abortion law disagree. They and the relatively few senators and House members who voted against the measure say making Utah the leader in the anti-abortion fight isn't worth the $1 million price tag of a Supreme Court appeal.
How did Utah get to this position? Why were legislators so willing to take up the abortion fight?
Bangerter looks on the issue with some personal pain. "I don't welcome it. But when it came, as governor you have to make the tough decisions."
The governor, a Republican, and GOP legislative leaders, fought off a move in the 1990 Legislature to discuss abortion. With the legal advice of Wilkins, Bangerter convinced the conservative Republicans pushing a Right to Life-backed bill that it would certainly fail in the high court, wasting Utah funds on a futile gesture.
Legislators, instead, formed a special Abortion Task Force, whose members took testimony during the past year and held public hearings, most well-attended and emotional. In the end, testimony ran the complete gamut of opinion and Utahns, as measured by opinion polls, don't hold a majority view: About a third want no changes in the law, the rest favor varying degrees of tighter regulation.
The task force ultimately recommended a very restrictive bill - one that allowed exceptions only to save the life of the mother, in cases of rape or incest and where the fetus was so deformed it couldn't survive birth.
Bangerter, considering his anti-abortion leanings, made a bold political move: In his State-of-the-State address Jan. 14 he threatened to veto the task force bill if it wasn't softened. Sponsors of the bill came around quickly.
But the compromise reached by the governor and pro-life advocates isn't seen as a compromise by pro-choice supporters. The new law bans abortion on demand - the root right of the historic Roe vs. Wade Supreme Court decision of the early 1970s that ensures safe, doctor-performed abortions for any reason.
Wilkins advised Bangerter that, in his opinion, the next logical step acceptable to the high court would be allowing abortions on demand during the first eight weeks of a pregnancy, restricting abortions thereafter. But Bangerter rejected that approach.
"It would still allow abortion on demand. And I just can't accept that," Bangerter said. On that point, Bangerter touches the real issue of abortion as considered in the Legislature - how the personal values of 104 lawmakers and the governor shape public policy.
The compromise bill mirrors closely the official stand on abortion articulated by The Church of Jesus Christ of Latter-day Saints. That stand opposes abortion on demand, but does allow some exceptions. Bangerter says he has never sought nor received any advice on abortion from church leaders. But the governor and 80 percent of the Legislature, Republicans and Democrats, are members of the LDS Church. And, as the governor has said, it's natural in acting on a moral issue such as abortion that a person's religious beliefs come into play.
The court victory won't come cheap, if it comes at all. Estimates range from $500,000 to $1 million to appeal the law. In the meantime, abortion on demand will continue in Utah, where about 5,000 abortions have been performed each year.
Opponents of a new law say Utah women will be forced back "into the dark ages of illegal abortions" if the law is upheld by the court. Young, frightened Utah women will perform abortions on themselves or resort to unclean, unsafe abortionists, they say. The result: dead or sterile women.
Anti-abortion advocates say not so. They say most abortions now performed are just late birth control. They say that under a new law, more babies will be born - the unwanted babies placed through adoption - and better birth-control measures taken by sexually active men and women.
The reality will likely fall somewhere in between. "You'll see women's clinics started in Wendover, Nev., and Evanston, Wyo., where abortion on demand will be legal and you'll see a lot of pregnant women taking the `fun buses' to those locals," says one state official who has watched the debate. "Most Utah women who want an abortion will just go someplace else to get it."