By Katherine E. Priest
Originally published in Utah Physician Magazine, Aug/Sept 2023
Physicians in Utah are well aware of the complexities surrounding the provision of abortion services in the state, particularly given the Dobbs opinion from the United States Supreme Court overturning the
longstanding Roe v. Wade precedent and the recent changes in Utah legislation on the same topic. Because of recent lawsuits brought by Planned Parenthood and others challenging the validity of Utah’s legislation, the landscape of Utah law addressing abortion care is somewhat uncertain and ever evolving. This article provides a current summary of the status of Utah’s abortion-related laws, and offers guidance and insights for physicians navigating this complex and sensitive field.
- Abortion Ban Trigger Law, S.B. 174
The legislature attempted to ban and criminalize most abortions in Utah by originally passing Senate Bill 174 in 2020, referred to as the “Trigger Ban,” which went into effect on June 24, 2022, after the Supreme Court of the United States overturned Roe v. Wade in the Dobbs decision. If enacted, S.B. 174 would allow abortions in Utah only if:- (i) the abortion is necessary to avoid the death or the “substantial and irreversible impairment of a major bodily function” of the woman on whom the abortion is performed;
- (ii) two physicians who practice maternal-fetal medicine concur in writing that the fetus has a “uniformly diagnosable and uniformly lethal” defect or severe brain abnormality that is “uniformly diagnosable”; or
- (iii) the woman receiving an abortion is pregnant as a result of rape or incest. To qualify under this exception, the physician must verify that the incident of rape or incest has been reported to law enforcement prior to performing the abortion. S.B. 174 provides that individuals who perform an abortion outside of these requirements will be guilty of a second-degree felony. Lastly, abortion clinics that perform abortions outside of these requirements are at risk of having their licenses revoked.
- The “Clinic Ban”, H.B. 467 H.B. 467, signed into law in March of 2023, requires that abortions be
performed in hospitals – not in abortion clinics or any other setting. H.B. 467 prevents abortion clinics from operating in the state beginning on January 1, 2024 and from receiving a license beginning on May 2, 2023. H.B. 467 provides that it is “unprofessional conduct” for medical professionals to perform an abortion outside of the statutory requirements and adds that an individual will be found guilty of “killing an unborn child if the person intentionally causes the death…” by performing an abortion. H.B. 467 permits an abortion to take place only if- (i) there is a serious risk of death or substantial impairment of a bodily function to the woman receiving an abortion;
- (ii) two physicians agree that the fetus has a “fetal abnormality that in the physicians’ reasonable medical judgment is incompatible with life;”
or - (iii) the woman became pregnant due to rape or incest
and - (iv) the unborn child has not reached 18 weeks gestational age. If a fatal fetal abnormality is found, H.B. 467 requires a physician to inform the woman, verbally and in writing, that “perinatal hospice services and perinatal palliative care” is available as an alternative to abortion. H.B. 467 also permits an abortion for a child under the age of 14 who is pregnant so long as the physician reports the incident to law enforcement.
As a result of court challenges to S.B. 174 and H.B. 467 by Planned Parenthood, a state district court judge has enjoined the implementation of S.B. 174 and H.B. 467 until Planned Parenthood’s legal challenge can be fully resolved. The State has appealed this ruling to the Utah Supreme Court, which heard argument on August 8, 2023. A decision from the Utah Supreme Court on the implementation of these abortion laws is expected in the near future. Until otherwise ruled by the Utah Supreme Court, Utah abortion law remains unchanged and abortion care is available up to 18 weeks. Given the potential imminent change to Utah law related to abortion care, Utah physicians must prepare for the possible implementation of S.B. 174 and H.B. 467 to steer clear of potential civil and criminal liability for violations of these laws.
Katherine E. Priest
Katie Priest is a Shareholder, practicing in the firm’s Employment Law and White Collar, Corporate Compliance, and Government Investigations sections. Ms. Priest represents employers in relation to any employment-related issue, and advises companies (small and large) on a wide range of business and employment issues, including hiring, managing, and terminating employees in compliance with state and federal law; defending against claims of discrimination, harassment, wrongful termination, retaliation, and failure to pay wages; and on drafting and enforcing employment agreements and employment-related policies.