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‘It was hastily passed’: Medical, legal experts raise concerns about Utah’s abortion trigger law

Jun 24, 2022, 11:45 AM | Updated: 8:49 pm

SALT LAKE CITY – The Utah Legislature prepared for the day the U.S. Supreme Court might return abortion rights to the states.  

In 2020, lawmakers debated, voted on and passed Senate Bill 174, a “trigger law” that former Republican Gov. Gary Herbert then signed into law – all before the ruling announced Friday opened the door to restricting abortions in Utah.  

The bill’s chief sponsor, Sen. Daniel McCay, R-Riverton, said the law was crafted, in part, to send a message.  

“We wanted to put a stake in the ground and say, ‘Hey, Supreme Court and others across the United States, where would Utah be,’ ” he said. McCay characterized the result of that effort as a ban on elective abortions.  

 

SB 174 does not apply to procedures after a miscarriage or an ectopic pregnancy. It also allows some exceptions:  

  • When necessary to prevent death or “serious risk of substantial and irreversible impairment of a major bodily function” of the mother  
  • Cases of rape, child rape and incest that have been reported to law enforcement 
  • Instances of a “uniformly diagnosable” and lethal defect or brain abnormality in the fetus  

Physicians who provide abortions outside of the restrictions can face felony criminal charges.  

“I’m sure if there was a poll of unborn children as to whether or not they’d want to live, I think, unfortunately, they can’t speak for themselves,” McCay said. “So, I think in this situation, the law has to step in and speak for them.”

Medical and legal experts have concerns about putting the law into practice.  

“It was hastily passed,” Karrie Galloway, President and CEO of Planned Parenthood Association of Utah said. “And we’ve got a lot of figuring out how to make it work.”

Teneille Brown is a law professor at the University of Utah and specializes in health law but represented only herself when speaking with KSL about Utah’s trigger law.

“It seems to have kind of started and ended from a place of moral outrage and not thinking through the policy implications,” she said.  

Both Brown and Galloway said the legislation will present significant ethical challenges for physicians. They believe too much of the language in the law is undefined and at odds with real medical terms.  

“If you’re going to allow healthcare providers to interpret the law, I have to tell you, it’s going to be different than how the legislators who made the law think it should be interpreted,” Galloway said. “My guess is sometimes these things are going to end up in court.”  

Brown pointed to phrases like “irreversible impairment” and “uniformly diagnosable.”

“The law here is very absolute, ‘certainty,’ ‘uniformly diagnosable,’ that’s not the way medicine works,” she said. “That’s not the way our bodies work. Everything exists on a spectrum.”

Their concerns echo those of Draper Democrat Rep. Suzanne Harrison during debate on the house floor in 2020.  

“I rise in opposition to this bill, and I rise as a healthcare medical physician,” she said.  

Harrison shared with fellow lawmakers that most physicians cannot predict outcomes with certainty and requiring such could create dangerous outcomes for patients.  

“For us to be putting in statute political gobbledygook as a medical requirement for a diagnosis that two physicians have to sign, under penalty of medical legal liability, is dangerous,” she said.  

When asked whether there are elements of the legislation that are problematic, McCay said, “It’s always hard trying to find the right balance of these things. The legislature meets every year for a reason because we’re constantly revisiting policy.”   

McCay did not rule out the possibility that the Legislature will consider changes, or even additional restrictions in the future.  

SB 174 will go into effect in Utah after the Office of Legislative Research and General Counsel meets and reviews the SCOTUS ruling, determines it allows for Utah to ban abortions, and notifies legislative leadership.

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‘It was hastily passed’: Medical, legal experts raise concerns about Utah’s abortion trigger law