A BYU law professor, Frederick Mark Gedicks, also recently weighed in with a letter to legislators sent at the request of Planned Parenthood of Utah. Gedicks — who has taught classes covering the Fifth and 14th amendments for more than 30 years — told lawmakers that provisions of HB205 criminalizing Down syndrome abortions would “almost certainly” be found unconstitutional by a court.
He also cited Roe v. Wade as well as Planned Parenthood v. Casey, a 1992 decision that laid out the “current contours” of a woman’s right to choose prior to viability, or the time in pregnancy when a fetus is able to live outside the womb.
Prof. Frederick Mark Gedicks letter to Legislature on HB205 by The Salt Lake Tribune on Scribd
“An abortion regulation is unduly burdensome if its ‘purpose or effect’ is to place ‘a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus,’ ” Gedicks wrote of the Casey decision.
While the law professor noted that he personally supports the moral goals of HB205, he said this sympathy “cannot alter the constitutional reality.”
Meanwhile, the American Civil Liberties Union of Utah has calledHB205 a “calculated and unconstitutional attack designed to burden women, scare doctors, and chip away at Roe v. Wade.”
Defending a lawsuit in court would likely be costly for Utah. In 2007, the Utah attorney general’s office estimated the legal costs for defending a more sweeping abortion ban would run about $1.3 million — with other estimates coming in millions of dollars higher.
The progressive-leaning Alliance for a Better Utah sent a request last month to Utah Attorney General Sean Reyes for estimated costs to defend the Down syndrome bill in court, but the group said last week it has yet to receive a response.
Officials with the Utah chapters of Planned Parenthood and the ACLU have voiced their strong opposition. National counterparts for both organizations have challenged Down syndrome abortion bans in court in other states.
But William Duncan, an attorney and a director at the conservative Sutherland Institute think tank, has argued that HB205 is sufficiently narrow to pass constitutional muster — and urged lawmakers to push ahead.
“The Legislature can’t allow advocacy groups to have a heckler’s veto over what the state law is by saying, ’Well, if you pass that law, we’ll sue,’” Duncan said at a recent hearing.
The Legislature, he said, “knows how to do the right thing, and can do that without worrying how others will respond. And this is the right thing to do.”
Do other states have similar laws?
Four U.S. states have passed abortion bans similar to HB205.
A federal judge blocked Indiana’s version in 2016, and the state is now in the midst of an appeal.
An Ohio bill signed into law last year currently faces a legal challenge filed on behalf of several of the state’s abortion providers, who argue the ban on Down syndrome abortions violates “well-established constitutional limits” outlining a woman’s right to choose.
A lawsuit filed by the lone North Dakota abortion provider over that state’s version of the ban was dropped by the clinic. It said it already did not perform the procedure after 16 weeks, when prenatal tests for Down syndrome and other conditions are administered.