27-05-2025
Here's where things stand with abortion in Utah
In 2020, Sen. Daniel McCay, R-Riverton, sponsored Utah's abortion trigger bill, which would allow abortions only in the case of rape, incest, substantial impairment of the mother's health, or if the baby had a lethal birth defect or severe brain abnormality, as the Deseret News previously reported.
While the bill made its way through the state Legislature, 'there was a lot of pushback from those who advocate for abortion,' McCay told the Deseret News.
However, 'for the most part, it passed through the House and the Senate without much delay,' he said.
The bill was signed into law by former Gov. Gary Herbert, and it sat there, unused until June 24, 2022, when the U.S. Supreme Court overturned Roe v. Wade with the Dobbs v. Jackson Women's Health Organization decision.
Before Roe was overturned, Utah was one of 18 states that had passed trigger bills limiting abortion access, which were set to go into effect if the federal decision from 1973 was ever overturned.
As of today, 12 states have banned abortion access, 10 states have imposed stricter gestational limits, 19 states have kept their laws at viability, similar to what was in place under Roe, and 9 states have expanded their laws to include some full-term abortions, per the Kaiser Family Foundation.
McCay was surprised to see Roe v. Wade overturned as soon as it was, just two years after Utah passed its trigger law.
'If anybody thought that Roe v. Wade was going to be overturned as quickly as it was after the bill, I would argue they had a sharper crystal ball than I had,' McCay said.
The trigger law went into effect early on Friday, June 24, the day Roe was overturned. The next day, on Saturday, the Planned Parenthood Association of Utah, along with the American Civil Liberties Union of Utah (ACLU), filed a lawsuit against the bill, claiming it violated the Utah Constitution.
On Monday, June 27, 2022, District Court Judge Andrew Stone granted a temporary restraining order to block the law for 14 days.
Next, Stone issued a preliminary injunction, extending the block until Planned Parenthood's lawsuit came to a resolution. Then on August 1, the Utah Supreme Court upheld Stone's injunction 4-1, which allowed Stone's lower court block to remain while the case moves forward.
That means abortion in Utah is still legal up until 18 weeks of pregnancy.
Chief Justice Matthew Durrant, the sole dissenter, has held that the preliminary injunction blocking the law should be overturned, and Planned Parenthood should be denied third-party standing, per previous Deseret News reporting.
McCay agrees with Justice Durrant: 'The Planned Parenthood case should have failed for lack of standing.'
Of the four justices who voted to uphold the injunction, McCay said, 'I think the hard part for them is they're trying to figure out a way to come up with a Solomon solution that is a compromise between what the law says and what they want to be the outcome, and I think that gets increasingly harder for them to do.'
The case's first procedural hearing is scheduled for April 2026, Pro-life Utah President Mary Taylor told the Deseret News.
The only states with abortion trigger bills that have made it to 2025 relatively injunction-free include laws in Arkansas, Alabama, Oklahoma and South Dakota. All four of these states have total abortion bans.
However, as the dust has mostly settled post-Roe, these states' abortion laws are outliers in how similar legislation has gone into effect elsewhere across the nation.
More commonly, abortion-related trigger bills faced legal battles, with Planned Parenthood acting as the plaintiff, claiming the legislation violates state constitutions.
In South Carolina, for example, the state passed a 6-week 'fetal heartbeat' abortion trigger bill in 2021. The next year, the law went into effect after the Supreme Court overturned Roe, but it was quickly met by a lawsuit by Planned Parenthood in July.
The South Carolina Supreme Court ruled that the trigger law did indeed violate the state's constitution, and the state's legislature proceeded to pass a new version of the law. Gov. Henry McMaster signed the bill into law on May 25, 2023, and later that day, Planned Parenthood filed a lawsuit, claiming the new law was unconstitutional, per The State.
On May 26, South Carolina Circuit Court Judge Clifton Newman blocked the ban from taking effect and ordered the state's Supreme Court to look at it again.
In August, the Supreme Court declared the 2023 Act constitutional and allowed it to go into effect, per U.S. Law.
On the other hand, several abortion trigger laws have been overridden by states amending their constitutions after the issue was put on the ballot.
In the cases of Arizona, Ohio and Missouri, their more restrictive abortion laws were overturned by a vote among state citizens, and the right to abortion was added into the states' constitutions.
Three years after Roe was overturned, abortion laws are undecided in only a few states — and one of them is Utah.
Roe v. Wade was a civil lawsuit pressed by Norma McCorvey (under the pseudonym, Jane Roe) against Henry Wade, then-Dallas County District Attorney in Texas.
Author of 'The Family Roe' Joshua Prager described how McCorvey became the Roe plaintiff to NPR.
Before 1973 in Texas, abortion was criminalized in the state for over 100 years. McCorvey was 'a prostitute at this time,' Prager said, adding that by her third pregnancy, she wanted an abortion. She had given up her previous two children for adoption.
Lawyers Linda Coffee and Sarah Weddington filed a lawsuit on McCorvey's behalf when she was six months pregnant with the Roe baby, per the Brennan Center. They challenged whether Texas' abortion laws were constitutional.
The case was heard before the U.S. Supreme Court in December, 1971, and in 1973, 7 of the 9 justices agreed that the Due Process Clause implies a right to privacy, and the post-Roe federal legal climate governing abortion was born.
The Planned Parenthood lawsuit against Utah's abortion law, meanwhile, has a non-person plaintiff.
'Planned Parenthood didn't have a woman that had been injured. Planned Parenthood is claiming a woman could be injured, and that's highly unusual for the courts to accept that as what they call 'standing,'' Taylor said.
In Chief Justice Durrant's dissent, he explained how plaintiffs must show 'distinct and palpable injury that gives (them) a personal stake in the outcome of the legal dispute.'
McCay added, 'It has to be a person, having that standing or the potential for injury to bring those claims, and we've always kind of followed that process.'
'This is a major departure from third party standing over the last 20+ years,' he said.
However, a large majority of the lawsuits resulting in enjoined abortion laws have been pressed by Planned Parenthood, ACLU and other organizations.
Utah's Supreme Court held in 2024 that providers, including Planned Parenthood, 'had third-party standing to challenge the constitutionality of the state's ban on behalf of their patients,' a decision which Justice Durrant disagreed with.
'Appellate litigation is undoubtedly too expensive, inconvenient and time-consuming. But if these factors alone are enough to justify the exercise of third-party standing, then we risk a dangerous expansion of that doctrine,' he said in his dissent.
In a conversation with the Deseret News, McCay said he's heard talk from fellow lawmakers of following suit from other states and passing a 4-week or an 8-week ban, 'but we're just so afraid of the courts enjoining it and restarting it, so it's really frustrating.'
He explained that while his constituents want more restrictive laws against abortion in the state, lawmakers are 'afraid' that new legislation could cause them to restart in the courts.
'It pains me that we are just kind of sitting on our hands, worried that the court will restart litigation and the litigation process just because they've gone one way or the other,' McCay said.
'It is healthy for the legislature, the judiciary and governors to have tension between them,' McCay said. 'And I think that tension, while at times I can find it frustrating, I worry about the day when there isn't tension between those organizations.'
The system is designed to have tension, he explained. 'Sometimes it works in my favor, and sometimes it doesn't.'
However, while every state started its own individual abortion battle on the same day, nearly all have reached legal conclusions, one way or another, and Utah has largely been left behind in its slow trudge toward the case's procedural hearing.
'A lot of time is ticking away,' McCay said. 'To the advocates against abortion, to their point, a lot of children are dying. And the courts, it seems like, aren't really concerned about that outcome.'
