ACLU officials have news for those who thought the Abortion War ended with the the 1991 legislative session: We have not yet begun to fight.
"Starting Monday, April 29, no woman in Utah should be wearing IUDs, which can cause abortion," said Janet Benshoof of the national American Civil Liberties Union. "This is worse than the laws in the Middle East on abortion."At risk of murder prosecution when the most restrictive abortion law in the nation goes into effect later next month are wom-en who practice some forms of birth control. In addition, just refer to the doctors who treat them and the clergy who counsel them as criminals. That's the way the ACLU reads the law.
State officials, however, argue that marriage of such a literal interpretation of the capital homicide law with the state's new abortion law is far-fetched, emotional rhetoric. While prosecution could technically occur under Utah's laws, it's unlikely, said John Clark, counsel to the Utah attorney general.
"As a hyper-technical matter, I suppose it might be just barely possible," Clark said. "As a legal matter and a practical matter, we don't think that would happen."
Clark and Bud Scruggs, chief of staff for Gov. Norm Bangerter, agreed there might be a legal loophole between Utah's criminal homicide law, circa 1983, and the new abortion law - a loophole that may be closed during a special legislative session next month. The earlier law defines causing the death of another human being, including an unborn child, as being criminal homicide, but not actionable if the death was caused by a legal abortion.
But the ACLU blasted the new law, calling it "unconstitutional, incomprehensible, vague, sloppy," and drafted with a "reckless disregard for women's lives." The group called a press conference Tuesday to talk about their proposed lawsuit challenging its constitutionality.
That's the same law Scruggs on Tuesday termed "very mainstream, a middle-of-the-road approach to a tough issue."
While the ACLU's challenge hasn't yet made it to court - officials speculate it should be filed in federal court by early April - the proposed lawsuit has been touted with the frequency of a press-happy candidate's campaign announcement.
As in many discussions of emotionally sensitive issues, abortion combatants not only disagree but appear to be consulting different law books.
"The Utah statute has absolutely nothing to do with homicide," said Scruggs. "No court in this state, much less the country, is going to tolerate that kind of interpretation of the homicide statute.
"The Legislature was extremely sensitive to not only decriminalize it from the woman's perspective but downgrading the criminal penalties from the doctor's perspective."
But the ACLU disagrees. Benshoof said the conflicts between the laws are far more than a legal loophole. "Whenever you create a new category of people subject to murder, you don't call it an oversight. The governor can't suspend the criminal homicide statutes . . . He's not the Emir of Kuwait."
The abortion statute, approved by the Legislature in January and signed into law by Bangerter, outlaws abortion in Utah except when a woman's health is endangered, the fetus is deformed or in reported instances of rape or incest.
The ACLU said it has signed up 20 plaintiffs to power their lawsuit case, including physicians, religious leaders and individual women.
In addition to other problems, the new abortion law treads on the constitutional guarantee of religious freedom, Benshoof said. "What religions all agree on is this (abortion) is a religious issue. This law imposed one theological belief."
Along with doctors, genetics and incest counselors could be prosecuted under the new law. Pregnant patients who receive certain cancer and diabetic medical treatments, which cause spontaneous abortions, would be in violation of the law, Benshoof said. And anyone who drives a woman to an abortion clinic could be charged with abetting a criminal homicide.
Pro-choice advocates say Utah law:
- Could lead to murder charges against women who have abortions and the doctors who perform them.
- "This is worse than the laws in the Middle East on abortion." - Janet Benshoof of the national American Civil Liberties Union.
State officials say:
- Such combined analysis of the abortion and homicide law is far-fetched emotional rhetoric.
- "No court in this state . . . is going to tolerate that kind of interpretation." - Bud Scruggs, governor's chief of staff.