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S.B. 69 Partial Birth Abortion

19 January 2004 Published in Legislative Work

Senate Judiciary, Law Enforcement,

and Criminal Justice Committee
Utah State Capitol
Salt Lake City, Utah 84114

January 20, 2004

RE: Unconstitutionality of S.B. 69 Partial Birth Abortion

Dear Committee Members,

The ACLU of Utah implores the committee to vote against Senate Bill 69 because it is constitutionally defective and therefore subject to legal challenge. S.B. 69, which is nearly identical to federal legislation struck down in Stenberg v. Carhart, 530 U.S. 914 (2000), is unconstitutional on two grounds: it fails to include an exception for the health of the pregnant woman and it is too broad.

The Supreme Court of the United States has consistently required exceptions to preserve both the health and life of the pregnant mother when the government attempts to prohibit abortion. Stenberg v. Carhart, following precedent established in Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), made clear that any prohibition on abortion that does not contain both exceptions is unconstitutional. While S.B. 69 provides a life exception in section 76-7-326, the bill fails to provide a health exception. Absent a health exception the bill is unconstitutional. The recently enacted federal “Partial-Birth Abortion Ban Act of 2003” also lacks a health exception, which has prompted three federal courts to block the ban from taking effect.

S.B. 69 is also unconstitutional because the range of safe abortion procedures it prohibits is too broad. By prohibiting a range of procedures, the bill likely places an “undue burden” on a woman’s right to seek an abortion before viability. See Stenberg, 530 U.S. at 939.

The committee should vote against S.B. 69 because it constitutes an unconstitutional restriction on abortion access and is subject to attack in court.

Sincerely,

Margaret Plane
Staff Attorney