SALT LAKE CITY — Utah has jabbed around the edges of the nation's long-standing abortion law, but hasn't gone as far as Alabama to ban the procedure in almost all circumstances.
The Beehive State's Republican-controlled Legislature passed a bill in 2016 that requires doctors to administer anesthesia or painkillers for a fetus before any abortion at 20 weeks gestation or later — the first law of its kind in the country.
Earlier this year, lawmakers outlawed abortions performed solely based on a Down syndrome diagnosis.
While both measures are controversial, the Legislature also waded into the national debate on abortion rights this year with a law banning the procedure after 18 weeks gestation. Planned Parenthood of Utah immediately sued and a federal judge stopped the law from taking effect while the case is litigated.
"Utah has taken a little more reserved approach. We’ve been pushing the envelope on abortions to limit them … pushing the envelope in what we believe are the current judicial constraints," Sen. Curt Bramble, R-Provo, said, listing some of those laws.
"If the question is would Utah join Alabama, in principle I suspect there’s a lot of support for that," he said. "Are we willing to pass a law? I would be."
The Alabama Legislature passed a bill that would ban almost all abortions in the state, setting the stage for a direct challenge to Roe v. Wade, the 1973 case that recognized a woman’s constitutional right to terminate a pregnancy.
The bill, which the governor signed Wednesday, makes an exception for cases when the mother's life is at risk, but not for rape or incest. While women who have abortions would not be prosecuted, doctors who perform the procedure could be charged with a crime and face up to 99 years in prison.
Utah legislators have not been willing to go that far, in part, because the Alabama law is not consistent with The Church of Jesus Christ of Latter-day Saints' stance on abortion, said Chris Karpowitz, co-director of the Center for the Study of Elections and Democracy. The church allows for exceptions in cases of rape, incest, and serious harm to the life or health of the mother.
Considerable evidence also shows that church members’ opinions tend to line up solidly behind the church’s position, and that affects public opinion in the state more broadly, he said.
"While many Utahns would generally be classified as pro-life and would likely support regulation beyond what is allowed by Roe v. Wade, I don’t see any substantial push either in the Legislature or the electorate to follow Alabama’s lead," Karpowitz said.
Rep. Cheryl Acton, R-West Jordan, carried the Utah measure that outlaws abortion after 18 weeks. It includes exceptions for rape, incest, life of the mother and fatal fetal defects.
Alabama, she said, has taken a different approach — "ours is more incremental" — but she hopes the U.S. Supreme Court will eventually take a case and return abortion law to the states.
"I think that it’s never been settled law. Ever. We’ve been intimidated into silence by threat of lawsuit and so forth. We just don’t do anything about it. But I do think something’s happening now nationally and it could just be the new court, but I think it’s more than that," Acton said.
"People have finally decided this is wrong. We’re not going to put up with it anymore. We’re part of an atrocity here just like slavery, just like segregation. Even though it may be constitutional, it can still be wrong."
Bramble, who has carried bills to limit abortion, said many Utahns, himself included, would support legislation that could undo the abortion law.
"If we could pass a bill that would pass judicial muster to overturn Roe v. Wade, I would sign up to be the sponsor of it," he said. "The questions is, will it pass judicial muster? And at what point do we have a national debate on whether abortion should be the law of the land."
Alabama is the first state to ban abortion outright. Georgia, Kentucky, Mississippi and Ohio have passed "heartbeat" bills that effectively prohibit abortions after six weeks gestation. Utah joined Arkansas in limiting the procedure to the middle of the second trimester.
As those laws face legal challenges over the next few years, most federal district and appeals courts are likely to strike them down as unconstitutional, said Paul Cassell, a University of Utah law professor and former federal judge. Proponents of those laws could then petition the Supreme Court, which might or might not take the case.
"It's going to all come down to the Supreme Court and whether they want to take one of these cases and reopen the issues surrounding Roe v. Wade," Cassell said.
That calculation would change if a lower court were to uphold the Alabama law, for example. Conflict among lower courts becomes much stronger ground for a Supreme Court review, he said.
"You can't have constitutional law applying one way in Alabama and another way in other states," Cassell said.
At this point, he said, it's only speculation as to whether the high court, given its current makeup, would be inclined to take an abortion case, or more precisely if five justices are interested.21 comments on this story
"The general rule is that the court will not revisit a prior decision, but as in many instances in the law there's a footnote or a catch, which is unless there's a good reason for reconsidering the decision," Cassell said.
And even if the court accepted a case, the law would probably remain the same, said Cassell, making it clear he's not taking a position on abortion one way or the other.
"If you were predicting what was going to happen," he said, "you would generally predict that the court would not overrule a prior decision."