H.B. 205’s Abortion Ban is Unconstitutional says BYU Law Professor
The following is an opinion piece written by BYU Law School Chair and Professor, Frederick Mark Gedicks, and sent to members of the Utah State Senate.
Frederick Mark Gedicks
Guy Anderson Chair & Professor of Law
Brigham Young University Law School
Provo, UT 84602-8000
February 19 (as corrected February 20), 2018
Senator Deidre M. Henderson, Chair, firstname.lastname@example.org
Senator Karen Mayne, Ranking Minority Member, email@example.com
Senate Rules Committee
Utah State Senate
P.O. Box 145115 Via U.S. & Electronic Mail
Salt Lake City, UT 84114
RE: Constitutionality of Down Syndrome Nondiscrimination Abortion Act
Dear Senators Henderson and Mayne:
Planned Parenthood of Utah has asked that I supply the Senate Rules Committee with my opinion about certain matters relating to the currently pending Down Syndrome Nondiscrimination Abortion Act, H.B. 205, 63rd Leg., Gen’l Sess. (Utah 2018). Specifically, it asked my opinion of (i) the determination of the Utah Office of Legislative Research and General Counsel that H.B. 205 “has a high probability of being declared unconstitutional by a court,” id., Legislative Review Note, ¶ 1; and (ii) contrary testimony by William C. Duncan of the Sutherland Institute that there is reason to believe that H.B. 205 would withstand federal constitutional challenge, id., Minutes of the House Judiciary Standing Committee audio recording 1:34:54 to 1:42:04 (Jan. 25, 2018),
I have taught classes covering the Due Process Clauses of the 5th and 14th Amendments for more than 30 years. I also research and write in this area. My c.v. is included with this letter for your information.
My academic title is provided for information and identification only. The views expressed herein are my own and do not necessarily reflect those of Brigham Young University or its sponsoring church.
I have reviewed the text of H.B. 205 and listened to Mr. Duncan’s testimony about its constitutionality. Among other things, H.B. 205 would enact proposed Utah Code § 76-7-310(2), which would require that women receiving a diagnosis of a Down syndrome fetus receive parental support and medical specialist referrals; proposed § 76-7-310(3), which would categorically prohibit abortions performed solely because the fetus has or is feared to have Down syndrome; and proposed § 76-7-310(4), which would impose criminal liability on medical providers who perform any such abortions (though women undergoing such abortions are expressly immunized from criminal liability).
It is my opinion that a court applying relevant decisions of the U.S. Supreme Court would almost certainly uphold proposed § 76-7-310(2), but would almost certainly invalidate proposed §§ 76-7-310(3) and (4) as applied to previability abortions. Consequently, I agree with legislative counsel that there is a “high probability” that H.B. 205 would be found unconstitutional, to the extent this determination applies to previability abortions prohibited and criminalized by proposed §§ 76-7-310(3) & (4). I respectfully disagree with Mr. Duncan’s apparent testimony to the contrary.
Roe v. Wade, 410 U.S. 113 (1973) held that “a woman’s decision whether or not to terminate her pregnancy” is a component of the liberty protected by the Due Process Clause of the 14th Amendment. Id. at 153. The current contours of this right were laid out in Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833 (1992) (plurality opinion), which the Court has followed in its subsequent abortion decisions. E.g., Stenberg v Carhart, 530 U.S. 914, 920, 929-30, 938 (2000); Ayotte v. Planned Parenthood of N. New Engl., 546 U.S. 320, 327-28 (2006); Gonzales v. Carhart, 550 U.S. 124, 145-46, 156-59, 163-64 (2007); Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292, 2300, 2309, 2312, 2320 (2016).
Casey provides that prior to “viability”—the point in the pregnancy at which the fetus is capable of surviving outside the womb—women may choose whether to terminate or to continue their pregnancies. 505 U.S. at 846, 870-71. States may regulate abortion prior to viability in support of their interest in protecting fetal life, id. at 846, 871-74, but only if such regulations do not impose an “undue burden” on the woman’s right to choose abortion, id. at 874, 877. 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.” Whole Woman’s Health, 136 S.Ct. at 2300, 2309, 2312 (quoting Casey, 505 U.S. at 877) (internal quotation marks deleted).
Prior to viability, therefore, a woman’s right to terminate her pregnancy is paramount and may not be overridden by the state. See Casey, 505 U.S. at 877-78. The State may legitimately seek to protect previable fetal life by informing the woman’s choice with accurate relevant information, and requiring a reasonable waiting period after she receives it before the abortion is performed. Id. at 872-73, 878. It is not until after viability, however, that the State’s interest in protecting fetal life becomes sufficiently weighty that it generally outweighs the woman’s right to terminate her pregnancy (though even then it must allow abortions which are necessary to protect the mother’s life or health). Id. at 879 (affirming Roe, 410 U.S. at 164-65).
Accordingly, in Casey itself the Court upheld legally required disclosures about the abortion procedure, the development of the woman’s fetus at the time she seeks an abortion, the legal obligation of the father to pay child support, and the availability of adoption and other relevant social services should she bring her pregnancy to term. 505 U.S. at 881-84. Casey also upheld a provision mandating that a woman wait at least 24-hours after receiving such information before undergoing an abortion. Id. By contrast, no decision of the Court since Roe has upheld a flat ban on previability abortions or the imposition of criminal liability on medical providers for performing them.
Proposed § 76-7-310(2) requires that pregnant women whose fetuses are diagnosed with Down syndrome be provided with referrals to a support group for parents with Down syndrome children, and to a medical provider knowledgeable about caring for such children. This provision closely resembles mandatory disclosure and notice requirements upheld by the Court in Casey. It is thus very likely that a court would uphold proposed § 76-7-310(2) as a constitutionally valid regulation which furthers Utah’s legitimate interest in protecting prenatal life, including the lives of fetuses diagnosed with Down syndrome, prior to viability.
By contrast, proposed §§ 76-7-310(3) and (4) categorically ban all abortions conducted solely because the fetus has or is feared to have Down syndrome, and impose criminal penalties on medical providers who perform such abortions. A categorical ban and criminalization of a class of previable abortions have both the purpose and effect of “placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” As the testimony of the sponsor suggested, the purpose and effect of these provisions are not “to inform the woman’s free choice,” but to entirely displace it with the choice of the state. See Testimony of Rep. Karianne Lisonbee, audio recording at 1:31:25-35.
Casey and its progeny have repeatedly affirmed the constitutionally protected right of women to choose to terminate or to continue a previable pregnancy without undue interference from the state. E.g., Whole Woman’s Health, 136 S.Ct. at 2300; Gonzalez, 550 U.S. at 146; Stenberg, 530 U.S. at 920; Casey, 505 U.S. at 877-78. Sections 76-7-310(3) and (4) violate this right by banning and criminalizing previability abortions whenever they are solely motivated by a diagnosis or fear of Down syndrome. The provisions are thus undue burdens on the protected right to terminate one’s pregnancy prior to viability.
Sections 76-7-310(3) and (4) are not saved by their imposition of criminal penalties only on abortion providers. If H.B. 205 becomes law, it is overwhelmingly likely that abortion providers within Utah will obey it, making abortions of previable Down syndrome fetuses unavailable within the state to women who have a constitutional right to choose them. This is a substantial obstacle to a woman’s right to choose a previability Down syndrome abortion, and thus an undue burden on that right.
Nor may these sections withstand constitutional challenge because they prohibit and criminalize only a relatively small number of all abortions currently performed in Utah. An abortion regulation constitutes an undue burden if it imposes a substantial obstacle in all cases to which the regulation applies; it does not matter that all such cases might constitute a small percentage of all abortions performed or of all women of reproductive age. Cf. Whole Woman’s Health, 136 S.Ct. at 2320 (holding that “the relevant denominator” in determining whether an abortion regulation constitutes a substantial obstacle “is those women for whom the provision is an actual rather than an irrelevant restriction.”) (brackets and internal quotation marks deleted). Sections §§ 76-7-310(3) and (4) prohibit and criminalize all abortions performed solely because the fetus has or is feared to have Down’s syndrome, and thus constitute a substantial obstacle to the choice of all women who are pregnant with such a fetus.
Mr. Duncan’s Testimony
Mr. Duncan’s testimony did not clearly differentiate the information and referral provisions of H.B. 205 from its prohibition and criminalization provisions. He generally suggested that the state has legitimate interests in protecting fetal life, and in using the law to teach respect for that life. As I have shown above, these interests are sufficient under relevant Supreme Court decisions to justify the information and referral provisions of proposed § 76-7-310(2), but not the prohibition and criminalization provisions of proposed §§ 76-7-310(3) and (4). Consequently, I agree with his testimony only to the extent that it applies to § 76-7-310(2).
Mr. Duncan also testified that attorneys would likely offer pro bono assistance to Utah in defending H.B. 205 if it becomes law and is constitutionally challenged. Another cost to defending H.B. 205 would be liability for the fees and costs of any successful constitutional challenge under 42 U.S.C. § 1988, which Mr. Duncan did not address.
As a matter of personal morality, I share the goal of H.B. 205 that pregnancies involving unborn Down syndrome children be brought to term. The bill’s information and referral provisions are constitutional means of encouraging women carrying such unborn children to bear and raise them, as are other measures open to the Legislature, such as increasing the availability of social services for parents of special-needs children.
Nevertheless, my sympathy with the goal of H.B. 205 cannot alter the constitutional reality that a court is very likely to invalidate H.B. 205’s prohibition and criminalization provisions as they apply to previability Down syndrome abortions.
Very truly yours,
Frederick Mark Gedicks
cc: Sen. Wayne L. Niederhauser, Senate Majority Leader, firstname.lastname@example.org
Sen. Gene Davis, Senate Minority Leader, email@example.com
Ms. Heather Stringfellow, Planned Parenthood of Utah, firstname.lastname@example.org
Mr. William C. Duncan, The Sutherland Institute, SI@sifreedom.org
 Mr. Duncan’s name is misspelled in the Committee Minutes.
 Casey also recognized the legitimacy of state’s interest in protecting the health of the pregnant woman in connection with previability abortions, but this interest is not implicated by H.B. 205.