You would be hard-pressed to find a Republican in the Utah Legislature who doesn’t line up as pro-life, but few are as actively opposed to abortion as Rep. Paul Ray. So, it was no surprise that when Ray, the hard-line Clearfield conservative, first heard news of the U.S. Supreme Court’s recent decision in Gonzales v. Carhart, he felt energized.
“This is the first ruling in over 30 years in which the high court has sided with the pro-life, states’-rights position, and I think it is a sign of things to come,” he says.
The 5-4 decision marked the first time since Roe v. Wade legalized abortion in 1973 that the Court upheld the restriction of a specific abortion procedure'intact dilation and extraction (IDX), dubbed by opponents as “partial-birth abortion.?
In addition to being energized, Ray also felt vindicated. During the 2007 legislative session, Ray championed a bill that would have banned all abortions in Utah with only minimal exceptions for rape, incest and when a woman’s health is in jeopardy. The bill ultimately failed, with many Republicans unwilling to back a measure that legal experts estimated would cost the state between $2 million and $4 million to litigate.
Ray has promised to reintroduce the bill next year, and he is already predicting a different outcome. “I think the Carhart ruling really affirms what I was trying to do last session,” Ray says, “and I think it is going to change the minds of more than a few hesitant lawmakers.?
But, for all of Ray’s enthusiasm, there are still political and legal realities to contend with. While Carhart may signal a major shift in abortion jurisprudence and usher in radical new regulation in states like Utah, the extent of any change on the abortion-rights landscape remains far from certain.
When Ray first introduced his abortion ban, it was in the form of a “trigger,” meaning the law would only go into effect in the event that Roe is overturned. But during the bill’s Health and Human Services Committee hearing in the House, Rep. Stephen Sandstrom, R-Orem, suddenly substituted that bill with an outright ban. Ray supported him.
“The court is obviously looking at new ways of limiting abortion, and [a full ban] is the best vehicle for asserting states’ rights on this issue,” Sandstrom says.
But the outright ban was short-lived. When the bill was brought up for debate on the House floor, Rep. Stephen Urquhart, R-St. George, moved to change it back to its “trigger” status. After emotional debate, Urquhart’s motion carried with complete support of the House leadership. The trigger ban passed the House, was amended in the Senate and finally sat with no final action as the session wound to an end.
“It was pretty much all about the money,” Urquhart says. “Utah has funded its share of this fight, and now it is someone else’s turn.?
In the early 1990s, Utah passed a slew of abortion restrictions, many of which challenged the 1973 core of Roe. But after years of costly litigation, the Supreme Court refused to hear the state’s appeal.
Ray and Sandstrom promise next time will be different. They have talked of networking with other state legislatures, such as Nebraska and North Dakota’s, which may also have interest in directly challenging Roe. They have also floated the idea of private donors paying the court costs, but private funding was promised in Utah’s earlier abortion cases and never materialized.
Even with elimination of the money issue, it’s doubtful an outright ban would garner enough support to become law. A number of Republican legislators'including House leadership'think that litigating the ban is a potential embarrassment to the state.
“As a lawyer and a lawmaker, I really hate to see a fellow legislator walk right into a judicial buzzsaw,” says Urquhart, chairman of the House Rules Committee, which decides the bills that get considered.
The reason the Carhart ruling is not easing local doubts about the probable success of abortion bans is that, for all the headlines, the ruling did not come as a surprise. And, since it considered only IDX abortions, the decision also is limited in scope.
Justice Anthony M. Kennedy, who wrote the majority opinion in Carhart, was already on record opposing IDX abortion when he dissented in 2000’s Stenberg v. Carhart, a case from Nebraska. IDX is a relatively rare procedure, performed during the second trimester of pregnancy. The fetus is almost fully removed from the uterus before being terminated.
Still, Kennedy’s earlier abortion votes have signaled he affirms the basic abortion right upheld in Roe.
There is also little doubt that the two newest justices'Samuel Alito and Chief Justice John Roberts'will be decidedly conservative voices on the court.
“We know now what we have known for a fairly long time, that Republican administrations will appoint justices who will not overturn Roe outright but will chip away at it gradually, until it is all but irrelevant,” says Jack M. Balkin, an abortion-law expert and Yale law professor. “What Carhart does show, though, is that the door is open to new regulations.?
Utah lawmakers are tentatively discussing possible new regulations, but they are generally hesitant to commit to any particulars. Despite talk of new restrictions and reviving the trigger law, ardent abortion foes will probably not be satisfied unless by anything less than a full ban. “They are feel-good bills,” says Sandstrom.
Utah already has an IDX ban in place. There is no known case of the procedure having been performed in Utah.