Abortion Bans

NEAR-TOTAL

On January 25, 1991, Utah amended its abortion law to resemble its former, pre-Roe abortion ban, but the ban remains unconstitutional and unenforceable.  Utah Code Ann. § 76-7-302 (Previous Statute Enacted 1876; Repealed and Reenacted 1973; Repealed and Reenacted 1974; Amended 1991; Last Amended 2004).

The unenforceable law provides that any person who intentionally performs an abortion in violation of this law is guilty of a felony.  Utah Code Ann. §76-7-314 (Original Statute Enacted 1973; Repealed and Reenacted 1974; Amended 1991; Last Amended 1996).  The law prohibits abortion before 20 weeks gestational age, measured from the date of conception, unless:  (1) the abortion is necessary to preserve the woman's life; (2) the abortion is necessary to prevent "grave damage" to the woman's medical health; (3) the pregnancy is the result of rape or incest which has been reported to a law enforcement agency; or (4) the abortion would prevent the birth of a child with grave defects.  Utah Code Ann. § 76-7-302(2) (Previous Statute Enacted 1876; Repealed and Reenacted 1973; Repealed and Reenacted 1974; Relevant Provision Enacted 1991).  A court has held that this provision is unconstitutional.  Jane L. v. Bangerter, 809 F. Supp. 865 (D. Utah 1992). 

The unconstitutional and unenforceable law further provides that after 20 weeks, no abortion may be performed unless:  (1) it is necessary to preserve the woman's life or to prevent "grave damage" to her medical health; (2) or the abortion would prevent the birth of a child with grave defects.  Utah Code Ann. § 76-7-302(3) (Previous Statute Enacted 1876; Repealed and Reenacted 1973; Repealed and Reenacted 1974; Relevant Provision Enacted 1991).  A court has held that this provision is unconstitutional because it unduly burdens the right of a woman to choose.  Jane L. v. Bangerter, 102 F.3d 1112 (10th Cir. 1996), cert. denied, 520 U.S. 1274 (1997). 

BAN ON ABORTION PROCEDURE

Utah bans a safe abortion procedure.  Utah Code Ann. § 76-7-326 (Enacted 2004). 

Utah enacted an amendment to an existing law which bans a safe, medically appropriate abortion procedure.  When the law was enacted, a lower court enjoined its enforcement.  However, in the wake of the Supreme Court's decision in Gonzales v. Carhart, the lower court found the law constitutional and enforceable, and lifted the injunction.  Utah Women's Clinic v. Walker, No. 2:04CV00408 PGC (D. Utah May 31, 2007).

The law provides that no physician shall knowingly perform such an abortion procedure unless it is necessary to save the life of a pregnant woman "whose life is endangered by a physical disorder, physical illness, or physical injury, including a life endangering physical condition caused by or arising from the pregnancy itself."  The law further provides that any physician who violates the law shall be fined and/or imprisoned, and allows the husband or parents of the pregnant woman to bring a civil suit for damages against the physician.  Utah Code Ann. § 76-7-326 (Enacted 2004). 

Biased Counseling & Mandatory Delay

A woman may not obtain an abortion until at least 24 hours after the attending or referring physician, a nurse, nurse-midwife, or physician's assistant orally, in a face-to-face consultation, tells her:  (1) the probable gestational age of the "unborn child"; (2) a description of its development; (3) the risks and nature of the procedure, "specifically how th[e] procedure will affect the fetus"; (4) the alternatives to abortion, including private and agency adoption methods; (5) that adoptive parents may legally pay the costs of prenatal care and childbirth; and (6) the medical risks of carrying the pregnancy to term.  If the person providing this information at least 24 hours prior to an abortion is not the attending or referring physician, the attending or referring physician must also provide this information in a face-to-face consultation.

In addition, at least 24 hours prior to an abortion, the woman must receive a state-mandated lecture by the attending or referring physician, nurse, nurse-midwife, clinical laboratory technologist, psychologist, marriage and family therapist, or social worker, orally and in person, that includes:  (1) that medical assistance benefits may be available for prenatal care, childbirth, and neonatal care; (2) that the "father" is liable for child support, even if he offered to pay for an abortion, and that a state agency will assist her in collecting child support; (3) that she has a right to view a free ultrasound of the "unborn child"; and (4) that the health department produces printed materials and a video that describe gestational stages, abortion methods, and public and private agencies and services, including adoption agencies and services, available to assist the woman through pregnancy, upon childbirth, and while the child is dependent.

In addition, the woman must receive state-prepared printed materials and be asked to view a video immediately or at another designated time and location.  A woman who declines to view the video immediately or when designated must be provided a copy.

The state-prepared printed materials and video must:  (1) describe with pictures, in a manner that conveys the state's preference for childbirth over abortion, the anatomical and physiological characteristics of the "unborn child" at two-week gestational increments, including the possibility of survival; (2) describe abortion methods, the consequences of each procedure to the fetus at various stages of development, the "possible detrimental psychological effects of abortion," and the medical risks associated with each procedure, including those related to subsequent child-bearing; (3) describe the risks associated with carrying the pregnancy to term; (4) include information about medical assistance benefits for prenatal care, childbirth, and neonatal care and the "father's" liability for child support; (5) state that a physician who provides abortion services without a woman's "informed" consent may be liable to her for damages in a civil action and that adoptive parents may legally pay the costs of prenatal care, childbirth, and neonatal care; (6) list public and private agencies and services available through pregnancy, at childbirth, and while the child is dependent, including a comprehensive list of names, addresses, and telephone numbers of public and private agencies and private attorneys whose practices include adoption, and an explanation of possible financial aid available during the adoption process, or include a 24-hour hotline that may be called to obtain such a list; (7) present adoption "as a preferred and positive choice and alternative to abortion"; and (8) convey the state's preference for childbirth over abortion.

In addition to including the information provided in the state-prepared materials, the video must show an ultrasound of the heartbeat of an "unborn child" in monthly increments from three to 14 weeks gestational age in a manner designed to convey the state's preference for childbirth over abortion, and the positive aspects of adoption.

A woman is not required to receive the information otherwise required if:  (1) her physician can demonstrate that he or she reasonably believed imparting the information would have caused a "severely adverse" effect on the woman's physical or mental health; (2) the abortion is necessary to preserve the woman's life; (3) the pregnancy is the result of rape or incest; (4) the fetus would have been born with grave defects; or (5) the woman is 14 or younger.

Utah Code Ann. §§ 76-7-305 (Original Statute Enacted 1973; Repealed and Reenacted 1974; Last Amended 1997), -305.5 (Enacted 1981; Last Amended 1998).

A court held that a previous version of this law was constitutional.  Utah Women's Clinic v. Leavitt, 844 F. Supp. 1482 (D. Utah 1994), rev'd in part, appeal dismissed in part, 75 F.3d 564 (10th Cir. 1995), cert. denied, 518 U.S. 1019 (1996).

Other Anti-Choice Law

Utah has created additional threats to privacy and choice by adding anti-choice language to its state code to express its opposition to abortion and its intent to restrict the right to choose to the greatest extent possible.

"It is the finding and policy of the Legislature, . . . that unborn children have inherent and inalienable rights that are entitled to protection by the state of Utah pursuant to the provisions of the Utah Constitution. . . The state of Utah has a compelling interest in the protection of the lives of unborn children. . . It is the intent of the Legislature to protect and guarantee to unborn children their inherent and inalienable right to life. . . " Utah Code Ann. § 76-7-301.1 (Enacted 1991).

"The Legislature finds and declares that it is the public policy of this state to encourage all persons to respect the right to life of all other persons, regardless of age, development, condition or dependency, including all . . . unborn persons." Utah Code Ann. § 78-11-23 (Enacted 1983; Last Amended 2001).

Refusal to Provide Medical Services

ABORTION REFUSAL CLAUSE

Utah allows certain individuals or entities to refuse to provide abortion services.

To whom does the refusal clause apply? Private or denominational hospitals, physicians or other persons associated with, employed by, or on the staff of a hospital.

What does the refusal clause allow? No physician or other person associated with, employed by, or on the staff of a hospital, who objects on moral or religious grounds, may be required to participate in medical procedures that result in an abortion. The refusal to participate may not be a basis for damages, disciplinary action, or other recriminatory action. Moral or religious objections to abortion may not be a basis for discrimination in hiring in the state. No private or denominational hospital may be required to admit a woman for the purpose of performing an abortion.

Does the law require the refusing entity to notify the persons affected? No.

Are there circumstances under which a refusal clause may not be exercised? No.

Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.

Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.

Utah Code Ann. § 76-7-306 (Original Statute Enacted 1973; Repealed and Reenacted 1974; Last Amended 1995).

Restrictions on Low-Income Women's Access to Abortion

Utah restricts low-income women's access to abortion.

In 2004, Utah enacted a law prohibiting public funding for abortion unless:  (1) the abortion is necessary to preserve the woman's life; (2) the pregnancy is the result of rape or incest reported to law enforcement agencies, except if the woman was unable to report the crime for physical reasons or fear of retaliation; or (3) the abortion is necessary to "prevent permanent, irreparable, and grave damage to a major bodily function" of the pregnant woman, provided that a caesarian section or other medical procedure is not a viable option to also save the life of the fetus.  Utah Code Ann. § 76-7-331 (Enacted 2004).  Utah Admin. Code § R414-1B.

Women who are eligible for state medical assistance for general health care may receive public funding for abortion only if the provider obtains prior authorization and:  (1) two physicians certify that the procedure is necessary to preserve the life of a woman endangered by a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself; or (2) the pregnancy is less than 20 weeks gestation and the result of rape or incest reported to law enforcement agencies unless the woman was unable to report the crime for physical or psychological reasons.  Div. of Health Care Financing, Utah Dep't of Health, Utah Medicaid Provider Manual, Physician Manual, Criteria No. 17, p. 11 (Oct. 2003).

An invalid and enjoined statute prohibits public funding for abortion unless the procedure is necessary to preserve the woman's life.  Utah Code Ann. §§ 26-18-4(2) (Original Statute Enacted 1973; Relevant Provision Enacted 1977; Last Amended 1999), 26-18-10(6) (Enacted 1981; Last Amended 1999).

A court held that this statute conflicts with federal law barring participating states from excluding abortion from the Medicaid program in cases of rape or incest as well as life endangerment, and issued a permanent injunction prohibiting its enforcement to the extent that it conflicts with federal law.  Utah Women's Clinic, Inc. v. Graham, 892 F. Supp. 1379 (D. Utah 1995).

Restrictions on Young Women's Access to Abortion

Utah law restricts young women's access to abortion.

Is the law enforceable?  Yes.  The United States Supreme Court held that the parental notice provision of the law is constitutional as applied to immature and unemancipated young women.  H.L. v. Matheson, 450 U.S. 398 (1981).  The parental consent provision of the law has not been considered by a court.

Who is considered a minor?  A young woman under the age of 18 who is not otherwise emancipated or married.

What is required - parental notice or parental consent?  Both notice and consent.

Who must have knowledge and provide consent?  One parent.

Are there other trusted adults who may have knowledge and provide consent instead?  No.

What is the process for providing notice and obtaining consent?  The attending physician must notify a parent of the young woman 24 hours before the physician performs the abortion.  The physician must also obtain the "informed written consent of a parent or guardian" before performing the abortion.

May the parental mandate be waived if a young woman is a victim of rape or incest?  The parental notice requirement may only be waived under certain circumstances.  If the pregnancy is a result of incest to which the parent or guardian was a party, and there is no other parent or guardian who has not committed incest with the young woman, the physician is not required to give parental notice and must report the incest to the Division of Child and Family Services.  There is no exception to the parental notice law for a pregnancy that is the result of rape.  The parental consent requirement cannot be waived if the young woman is a victim of rape or incest.

May the parental mandate be waived if a young woman is a victim of child abuse?  The parental notice requirement may only be waived under certain circumstances.  If a parent or guardian abused the young woman, and there is no other parent or guardian who has not abused the young woman who can be notified, the physician is not required to give parental notice and must report the child abuse to the Division of Child and Family Services.  The parental consent law cannot be waived if the young woman is a victim of child abuse.

May the parental mandate be waived if a young woman's health is threatened?  Yes, but only if the physician determines that the abortion must be performed immediately to avert the minor's death or that a medical condition exists such that there is no time to provide parental notice or to obtain parental consent.  Such a medical condition would have to threaten the minor's life, or pose "serious risk of substantial and irreversible impairment of a major bodily function."

May the parental mandate be waived under any other circumstances?  The parental notice requirement may also be waived if "the parent or guardian has not assumed responsibility for the minor's care and upbringing."  The parental consent requirement may also be waived if the minor obtains consent from a judge, but such judicial consent does not waive the parental notice requirement.

If a young woman must obtain permission from a judge, what is the process?  She must secure a court order finding, by a preponderance of the evidence, that she "has given her informed consent to the abortion; and is mature and capable of giving informed consent to the abortion" or that "an abortion would be in the minor's best interest."  The judicial bypass procedure will waive the parental consent requirement, but it does not waive the parental notice requirement.

Are there other significant requirements under the law?  No.

Has a court considered the constitutionality of this law?  Yes.  The U.S. Supreme Court held that the parental notice law is constitutional as applied to immature and unemancipated minors.  H.L. v. Matheson, 450 U.S. 398 (1981).  However, a court held that this parental notice law was unconstitutional and unenforceable as applied to a specific emancipated and mature young woman who was capable of making an informed decision.  L.R. v. Hansen, No. C-80-0078J (D. Utah Feb. 8, 1980).  No court has considered the parental consent law.

Other information about the law:  None.

Utah Code Ann. §§ 76-7-304 (Original Statute Enacted 1973; Repealed and Reenacted 1974; Last Amended 2006), -304.5 (Enacted 2006).

Targeted Regulation of Abortion Providers (TRAP)

Utah imposes a variety of burdensome requirements on abortion providers that are not imposed on other health care providers, including:

Restrictions on Where Abortions May Be Performed

Utah places medically unnecessary restrictions on where abortions may be performed.

All providers that perform second trimester abortions must be licensed as "abortion clinics" and are subject to administrative, professional qualification, patient and employee testing, and physical plant requirements. Utah Code Ann. §§ 26-21-2(1), 76-7-313 (Enacted 1981); Utah Admin. Code R432-600.

Each clinic must be located within 15 minutes or less of a full-service hospital, with whom the clinic must have a written transfer agreement and admitting privileges for the clinic medical director or the attending physician. Utah Admin. Code R432-600-14. No exceptions are made for rural areas.

Each clinic must have medical director who is: (1) a licensed physician; (2) a diplomat of the American Board of Obstetrics and Gynecology or the American Board of Surgery, or who can provide evidence of other training and experience which qualifies him or her for admission to an examination by either board; (3) certified by the American College of Osteopathic Obstetricians and Gynecologists or the American Board of Osteopathic Surgeons, or who can provide evidence of other training and experience which qualifies him or her for admission to an examination by either board; and (4) a member in good standing with the National Abortion Federation. Utah Admin. Code R432-600-9.

Utah has an unconstitutional and unenforceable requirement that all abortions after the first trimester be performed in a hospital. Utah Code Ann. § 76-7-302(1) (Original Statute Enacted 1973; Repealed and Reenacted 1974; Last Amended 2004).

This restriction is unconstitutional as to second trimester abortions under a U.S. Supreme Court decision which held that a second trimester hospitalization requirement unconstitutionally burdens a woman's right to choose an abortion.  Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (1983).

Restrictions on Who May Perform Abortions

Utah prohibits certain qualified health care professionals from performing abortions.

Only a physician or osteopathic physician licensed by the state to practice medicine may perform an abortion. Utah Code Ann. §§ 76-7-302(1) (Original Statute Enacted 1973; Repealed and Reenacted 1974; Last Renumbered 1991; Last Amended 2004).