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Protecting the Bill of Rights in Utah since 1958

Second Substitute SB 69, Partial Birth Abortion Amendments

10 March 2004 Published in Legislative Work

Governor Olene Walker
210 State Capitol
Salt Lake City, Utah 84114-0601

March 10, 2004

Dear Governor Walker,

The ACLU of Utah is obliged to comment on Second Substitute SB 69, Partial Birth Abortion Amendments. We respectfully request that this pending law be vetoed because it fails to include an exception to preserve the health of the pregnant woman and the wording employed is too broad.

First we would like to note that Utah’s existing ban on so-called “partial birth abortions’ has been cited law by U.S. Supreme Court Justice O’Connor as a model method wherein states can address this issue without violating the constitution. In contrast, SB 69 is constitutionally defective, in part because it fails to provide an exception to the ban in cases where the procedure is necessary to preserve the health of the pregnant mother. Case law makes clear that a law prohibiting or restricting abortion is unconstitutional if it lacks exceptions to preserve the life and health of the pregnant mother. See Stenberg v. Carhart, 530 U.S. 914 (2000), Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), and Roe v. Wade, 410 U.S. 113 (1973).

There is also a concern that the range of safe abortion procedures prohibited is too broad. Because the prohibited range is too broad, the bill likely places an undue burden on a woman’s right to seek an abortion, in violation of U.S. Supreme Court rulings stating that abortion laws may not place an undue burden on a woman’s right to seek an abortion before viability. See Stenberg, 530 U.S. at 939.

Further, the recently enacted federal “Partial-Birth Abortion Ban Act of 2003” also lacks a health exception. This has prompted three federal courts to block the ban from taking effect. Because the federal cases are scheduled for trial this spring, it would be prudent for the state to wait for the outcome of those cases before passing a substantially similar law. In addition, so long as the federal ban is in place, a state law is unnecessary.

We understand the legislature’s desire to take a stand on a controversial matter, but request that the leader of the state’s executive branch act as the judiciary inevitably will, and acknowledge existing constitutional law.

Thank you for your time and consideration of this matter.

Respectfully,

Dani Eyer, Executive Director

Margaret Plane, Staff Attorney