Abortion Providers: Restrictions
Utah imposes extra restrictions on abortion providers, despite the fact that all health-care providers already must comply with a variety of federal and state regulations governing health, safety, building and fire codes, and zoning requirements.
Restrictions on Where Abortion Services May Be Provided
Utah places medically unnecessary restrictions on where abortion services may be provided.
All facilities including physician’s offices that provide first-trimester abortion services must be licensed as "type I abortion clinics;" all facilities that provide abortion care after the first trimester must be licensed as "type II abortion clinics." Both classes of facilities are subject to unique administrative, professional-qualification, patient and employee testing, and physical-plant requirements.
All clinics are subject to inspection at least twice a year with one of the inspections being conducted without advance notice. The regulations make no reference to patient privacy or confidentiality. Utah Code Ann. §§ 26-21-2(1) (Enacted 1981; Last Amended 2011) 26-21- 2(23), 26-21-2(24), 26-21-6.5, 76-7-313 (Enacted 1981); Utah Admin. Code R432-600.
Each abortion provider must be located within 15 or fewer minutes of a full-service hospital, with which the clinic must have a written transfer agreement and admitting privileges for the clinic medical director or attending physician. Utah Admin. Code R432-600-13. Nothing requires hospitals to grant such privileges or agree to such an agreement, nor is an exception made for rural areas.
In addition to physical-plant requirements dictating various room sizes and prescribing the type of lighting used in the storerooms, hallways, and laundry areas, Utah’s regulations incorporate into law several chapters of a book of exhaustive guidelines for construction of new health-care facilities. Utah Admin. Code R432-600-29, R432-600-5(2). These guidelines include many requirements that are not related to patient care such as: specifications for the type of fabric used on window coverings, requisite ceiling heights for the boiler room, and a mandate that a provider have four parking spaces per procedure room. Guidelines, Facility Guidelines Inst., 2010 ed. §§ 3.1, 3.2.
All doctors who renew a medical license in the state must indicate on their renewal application whether they provide abortion services at a location other than a hospital and identify the facilities where they provide such services. Utah Code Ann. §§ 58-67-304(3), 58-68-304 (3).
Restrictions on Who May Provide Abortion Services
Utah prohibits certain qualified health-care professionals from providing abortion services.
Only a physician licensed by the state to practice medicine may provide abortion care. Utah Code Ann. §§ 76-7-302(1) (Original Statute Enacted 1973; Repealed and Reenacted 1974; Last Renumbered 1991; Last Amended 2009).
Utah’s post-viability restriction provides that no abortion may be provided after viability unless necessary to preserve the woman’s life, to prevent "substantial and irreversible impairment of a major bodily function," to prevent the birth of a child with lethal defects, or if the pregnancy is the result of rape or incest that has been reported to law enforcement. Utah also had an unconstitutional and unenforceable law that prohibited abortion after 20 weeks in certain circumstances. A court held this provision unconstitutional. Jane L. v. Bangerter, 61 F.3d 1493 (10th Cir. 1995). In 2009, Utah revised the law to apply the ban to post-viability abortion only. Utah Code Ann. § 76-7-302(3) (Original Statute Enacted 1973; Repealed and Reenacted 1974; Last Amended 2010).
Utah has an additional unconstitutional and unenforceable law that provides that if the fetus is sufficiently developed to have any reasonable possibility for survival, the physician must attempt to promote, preserve, and maintain the life of the fetus, consistent with preserving the life of the woman or preventing grave damage to her medical health, and must use the medical procedure most likely to result in fetal survival in the best medical judgment of the physician. The physician may not use a medical procedure designed to kill or injure the fetus unless necessary to prevent grave damage to the woman’s medical health. Utah Code Ann. §§ 76-7-307 (Original Statute Enacted 1973; Repealed and Reenacted 1974; Last Amended 1991), 76-7-308 (Original Statute Enacted 1973; Repealed and Reenacted 1974; Last Amended 1991).
A court held that these provisions are unconstitutional because they do not adequately protect the health of the woman. Jane L. v. Bangerter, 61 F.3d 1493 (10th Cir. 1995).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade. Regarding the right to abortion in the third trimester, Roe allows for restrictions on post-viability abortion so long as they contain adequate exceptions to protect the woman’s life and health. However, many states have bans with inadequate exceptions, no exceptions at all, or define viability as occurring at a particular point in pregnancy. A state may not prohibit abortion prior to viability, which is that point at which a fetus is capable of "meaningful life" outside a woman’s body. Roe v. Wade, 410 U.S. 113, 163 (1973). Because viability is a point that varies with each pregnancy, states may not declare that it occurs at a particular gestational age. NARAL Pro-Choice America opposes Utah’s post-viability restriction because the health exception is dangerously narrow. Roe v. Wade, 410 U.S. 113, 163 (1973).
Abortion Bans Throughout Pregnancy: Procedure Ban
Utah bans a safe abortion procedure with no exception to protect a woman’s health. 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 prohibits a physician from providing such a procedure unless necessary to save the woman’s life. Any physician in violation of the law can be fined and/or imprisoned. The law also allows the woman’s husband or her parents to bring a civil suit for damages against the physician. Utah Code Ann. § 76-7-326 (Enacted 2004).
There is also a Federal Abortion Ban, which applies nationwide regardless of state law. The federal ban prohibits certain second-trimester abortion procedures and has no exception for a woman’s health. In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the court has upheld a ban on a previability abortion procedure.
Abortion Bans Throughout Pregnancy: Ban by Week
Utah has an unconstitutional and unenforceable ban that outlaws abortion procedures as early as 18 weeks.* The law provides inadequate exceptions for women’s health but does an exception for a diagnosis of "severe brain abnormality." The law specifies that severe brain abnormalities do not include down syndrome, spina bifida, cerebral palsy, or any other condition that does not cause an individual to live in a mentally vegetative state. Utah Code Ann. § 76-7-301, Utah Code Ann. § 76-7-302, Utah Code Ann. § 76-7-313, Utah Code Ann. § 76-7-314.
Utah law measures gestational age as calculated from the first day of the last menstrual period of the pregnant person.
*This ban is enjoined while litigation on the law continues. Planned Parenthood Association of Utah v. Miner, No. 2:19-CV-238) (D. UT. Apr. 18, 2019).
Reasons-Based Ban: Fetal Anomaly
In 2019, Utah passed a law to ban abortions sought as a result of a fetal diagnosis or possibility of down syndrome. The ban will only go into effect if the United States Supreme Court or another court of binding authority on the state holds that a state may prohibit an abortion prior to viability if the reason for the abortion is a down syndrome diagnosis. The law also requires physicians to provide information to pregnant people on down syndrome as maintained and supplied by the Department of Health when the result of a prenatal screening or diagnostic test indicates a possible down syndrome diagnosis. Utah Code Ann. § 76-7-302.4 (Enacted 2019).
A woman may not obtain an abortion until at least 72 hours after the attending or referring physician, physician, nurse, nurse-midwife, genetic counselor, or physician’s assistant orally, in a face-to-face consultation in any location in the state, 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 72 hours before an abortion is not the attending or referring physician, physician, the attending or referring physician must also provide this information in a face-to-face consultation in any location in the state.
In addition, at least 72 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, genetic counselor, 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) the "options and consequences" of a medication abortion, including the statement: "Research indicates that mifepristone alone is not always effective in ending a pregnancy. You may still have a viable pregnancy after taking mifepristone. If you have taken mifepristone but have not yet taken the second drug and have questions regarding the health of your fetus or are questioning your decision to terminate your pregnancy, you should consult a physician immediately." (5) include information about medical assistance benefits for prenatal care, childbirth, and neonatal care and the "father’s" liability for child support; (6) 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; (7) 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; (8) present adoption "as a preferred and positive choice and alternative to abortion"; and (9) 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 or avert a serious risk of substantial and irreversible impairment of a major bodily function; (3) the pregnancy is the result of rape or incest; (4) the fetus would have been born with grave defects; (5) the woman is 14 or younger; (6) if the abortion was necessary in a case where a ruptured membrane would cause a serious infection; or (7) two physicians concur that the fetus has an anomaly incompatible with live birth. Utah Code Ann. §§ 76-7-305 (Original Statute Enacted 1973; Repealed and Reenacted 1974; Last Amended 2017), -305.5 (Enacted 1981; Last Amended 2012), -308.5 (Last Amended 2017).
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).
In Utah, a woman may not obtain an abortion until at least 72 hours after receiving biased-counseling materials. Because she must receive those materials in person, the law forces a two-trip requirement. Utah Code Ann. §§ 76-7-305 (Original Statute Enacted 1973; Repealed and Reenacted 1974; Last Amended 2014), -305.5 (Enacted 1981; Last Amended 2012).
Insurance Coverage for Abortion
Prohibits Abortion Coverage in the State
Does Utah expressly prohibit statewide private insurance coverage of abortion services?
Yes. Private health-insurance plans offered in the state may not include abortion coverage, with exceptions only to save a woman’s life, if the pregnancy is the result of rape or incest, or if the fetus has a uniformly lethal anomaly. Nothing in the law prohibits the purchase of abortion coverage through an optional rider for which an additional premium is paid. However, insurers are not required to offer such riders and there is no evidence that such separate policies exist. (Even if they did exist, offering women the "option" to pay for separate abortion coverage is a false promise because no one plans for an unplanned pregnancy.) Utah Code Ann. § 31A-22-726 (Enacted 2011).
Prohibits Abortion Coverage in the Insurance Exchange
Does Utah expressly prohibit plans in its state exchange from covering abortion services?
Yes. Health-insurance policies offered in the state health-insurance exchange may not include abortion coverage, with exceptions only to save a woman’s life, if the pregnancy is the result of rape or incest, or if the fetus has a uniformly lethal anomaly. Nothing in the law prohibits the purchase of abortion coverage through an optional rider for which an additional premium is paid. However, insurers are not required to offer such riders and there is no evidence that such separate policies exist. (Even if they did exist, offering women the "option" to pay for separate abortion coverage is a false promise because no one plans for an unplanned pregnancy.) Utah Code Ann. § 31A-22-726 (Enacted 2011).
Abortion Coverage for Low-Income People
Restricts Low-Income Women’s Access to Abortion
Utah prohibits 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, Sec . 2 (Rev. July 2014).
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).
Young People & Abortion
Utah law restricts young women’s access to abortion.
Is the law enforceable? Yes. The U.S. 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 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 24 hours before the physician provides the abortion. The physician must also obtain the "informed written consent of a parent or guardian" before providing the procedure.
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 cases 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 provided immediately to avert the young woman’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 2008), -304.5 (Enacted 2010).
Insurance Coverage & Contraception
No state measure.
Contraception Coverage for Low-Income People
No state measure.
EC in the ER
Utah law ensures that sexual-assault survivors receive access to emergency contraception (EC) in hospital emergency rooms and urgent-care centers. As part of the minimum standard for the examination and treatment of sexual-assault survivors, hospitals must provide the woman with medically and factually accurate written and oral information about EC, offer her EC, and dispense EC to her upon request.
Freestanding urgent-care centers are exempt from providing EC if there is a hospital within 30 miles and if an employee at the urgent-care center provides the woman with medically and factually accurate written and oral information about EC as well as the name and address of the hospital located within the 30-mile radius. Utah Code Ann. §26-21b-201 (Enacted 2010); H.B.200, 62nd Leg., Gen. Sess., (Utah 2017).
Other Important Issues
No state measure.
Refusals & Guarantees
Refusals of Medical Care
ABORTION REFUSAL CLAUSE
Utah allows certain individuals or organizations to refuse to provide abortion services.
To whom does the refusal clause apply? Health-care facilities, including hospitals, hospices, nursing-care facilities, residential assisted-living facilities, birthing centers, ambulatory surgical facilities, and facilities owned or operated by health-maintenance organizations, as well as individuals associated with health-care facilities.
What does the refusal clause allow? A health-care provider or organization may, on religious or moral grounds, refuse to provide or participate in abortion services, or refuse to admit a patient for abortion care. 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.
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 2011).
Counseling & Referral Bans
No state measure.