Scott G Winterton, Deseret News
Amber Merkley with her son Finn and husband Justin, talks to the committee as the House Judiciary Committee discusses HB0166 Down syndrome nondiscrimination abortion act at a hearing at the Capitol in Salt Lake City on Wednesday, Feb. 6, 2019.

Nearly all laws send some kind of message: about our priorities as a community, about what we value or about what we feel is unimportant. In a time when other states are considering or enacting extreme bills that remove traditional limits on the taking of unborn life, silence, too, sends a message. That silent message is one the state could not afford to send.

Within the past week, Gov. Gary Herbert has signed two important pieces of legislation intended to strengthen the culture of respect for life in Utah.

The first was HB166, the Down Syndrome Nondiscrimination Abortion Act, sponsored by Rep. Karianne Lisonbee. This law provides that 1) the state make available resources for medical professionals to share with parents given a prenatal Down syndrome diagnosis, and 2) if the federal courts allow a ban on abortions targeted at eliminating individuals with Down syndrome, such a ban would go into effect in Utah.

The second was HB136, Abortion Amendments, sponsored by Rep. Cheryl Acton. This law prohibits abortions performed after 18 weeks, when an unborn child is approaching viability and abortion procedures are particularly violent. The bill allows for exceptions in cases where a mother has been victimized by rape or incest, where the life of the mother is threatened by a continued pregnancy, and where the child already has a fatal condition and will not survive birth.

Predictably, these modest steps were met with threats of litigation based on the U.S. Supreme Court’s ruling that states may not create an “undue burden” on a woman’s choice to abort an unborn child.

The Down syndrome bill is not open to challenge, since the abortion provision does not go into effect until the federal courts have clearly ruled on the constitutionality of the idea. The informational effects of that bill, however, will begin helping parents faced with a prenatal diagnosis. The law is a teacher, and the laws in Utah now express the state’s conviction that when medical professionals counsel a parent whose child has been diagnosed with Down syndrome, they should encourage understanding rather than abortion.

So the challenge would be to the 18-week bill. Proponents of abortion on demand argue that the Supreme Court’s rulings create an absolutist position that any regulation on abortion is illegal. That is likely an overreading of the relevant precedent. In fact, the Supreme Court has approved abortion restrictions when they advance important government interests. Justice Anthony Kennedy wrote for a majority of the court: “The government may use its voice and its regulatory authority to show its profound respect for the life within the woman.” The court has recognized legitimate state interests in 1) promoting respect for life in the medical profession, 2) preventing anything even nearing infanticide, 3) ensuring “so grave a choice (as abortion) is well informed.”

At any rate, the court should be given the opportunity to revisit its now decades-old decisions made before recent medical developments.

10 comments on this story

In the Legislature, bills related to life issues are often denigrated as mere “message bills” — making a statement without real effects. That is not a fair characterization of these bills, which will produce tangible benefits for unborn children and their parents. But as noted at the outset, in some ways they are message bills as well.

This session, the Legislature and now the governor have allowed the state to send a powerful message about the value Utah (and an increasing segment of the population) places on every human life. Silence might have been easier but ultimately wrong, when the alternative would have been to acquiesce in the view that some lives are not worth protecting.