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2001 Legislative Report
Lawmakers further restrict family planning efforts.
House Bill 12 Provision for Legal Relinquishment of a Newborn, which establishes drop-off sites for
women to give up their newborn babies with few questions asked, garnered much positive publicity.
Similar laws have been popular in state legislatures around the country, and they seek to avoid the
tragic yet relatively rare incidents in which distraught parents abandon their babies. However, HB
12 and its counterparts provide only an after-the-fact safety net rather than a solution to the
problems of unintended pregnancies or the inability to care for a child. And unfortunately, the
legislature made certain that there would be little help for family planning efforts that would prevent
the need for such drop-off sites. A particularly apt example of this was the Senate’s refusal to
grant a public hearing for Senate Bill 42 Equity in Prescription Coverage, which would have required
health insurance plans to cover prescription contraceptives at the same level as other prescription
drugs. This type of legislation seems especially reasonable in light of the fact that over 95% of
health insurance companies cover drugs like Viagra to treat sexual impotence, while less than 50%
cover even one form of prescription contraception.
In addition, legislators this year seemed unusually preoccupied with restricting sex education in
public schools. Senate Bill 75 Public Education Curriculum Amendments underscores and
exacerbates the lack of complete and accurate information that is essential to making responsible
choices. At first, the bill went so far as to prohibit teachers from even responding to their students’
spontaneous questions about contraception or sexually transmitted infections. While that portion
of the bill was removed and the law was amended to allow teachers to respond to such questions
as long as they do not advocate for or promote contraceptive use, the unmistakable message
remains that teachers and students are not to be entrusted with comprehensive sex education
Moreover, new intent language added to the budget prohibits the State Office of Education from
accepting any federal grants “specifically used to fund sexual education, including grants currently
received, namely AIDS Education and Prevention.” Not only does this measure deprive Utah of
$320,000 in HIV/AIDS funds, but, by being unable to apply for these grants, Utah also loses
eligibility for another $450,000 in funds for at-risk youth programs, which include nutrition and
physical fitness, as well as smoking cessation programs. Even Senate Bill 7 State Textbook
Commission Amendments – the seemingly innocuous law concerning the commission that
approves school instructional materials – potentially impacts sex education in that it makes it
possible for local school districts to use human health books that the state has rejected due to
medical inaccuracies, incomplete information, or other content problems. For additional information
about how the above laws affect reproductive rights, contact Utahns for Choice at (801) 328-8939.
Bill negatively impacts gay-positive viewpoints expressed in the classroom.
Senate Bill 75 Public Education Curriculum Amendments also places new limits on the discussion
of homosexuality in the context of health education. It states: “At no time may instruction be
provided, including responses to spontaneous questions raised by students, regarding any means
or methods that facilitate or encourage the violation of any state or federal criminal law by a minor
or an adult.” This carefully crafted language barely conceals the fact that the “crimes” referred to
are those outlined in state sodomy laws. More seriously, under this provision even a simple
statement that lesbians and gay men can lead healthy and productive lives can violate the law. The
unconstitutional prohibition of all gay-positive viewpoints is most explicit in the portion of the bill
mandating that instructional materials and teachers’ responses to students’ questions cannot
include “the advocacy of homosexuality.” SB 75 is part of a national trend to pass sweeping
anti-gay policies that prohibit teachers from promoting, encouraging, or portraying in a positive light
lesbian or gay lifestyles. The statute has the potential to negatively impact the First Amendment
rights of public school teachers, and consequently, we will scrutinize its application.
Modifications to Utah’s criminal code threaten constitutionally protected expression.
The ACLU has always been wary of laws that single out particular crimes for enhanced penalties.
House Bill 322 Domestic Terrorism of Commercial Enterprises mandates enhanced penalties for
“any criminal offense with the intent to halt, impede, obstruct, or interfere with the lawful operation
of an animal enterprise or to damage, take or cause the loss of any property owned by, used by, or
in the possession of a lawful animal enterprise,” a designation that includes, but is by no means
limited to, farms, ranches, rodeos, and research facilities. In a more direct attack on particular
viewpoints, HB 322 also creates a new crime called “commercial terrorism.” According to the new
law, an individual is guilty of commercial terrorism if “he enters or remains unlawfully on the
premises or in a building of any business with the intent to interfere with the employees,
customers, personnel, or operation of a business.” The definition of “enter” includes “the intrusion
of any physical object, sound wave, light ray, electronic signal or other means of intrusion under the
control of the actor.” This language would make it a crime for demonstrators lawfully assembled on
a public sidewalk to engage in any protest targeting an individual business if any “light ray” (i.e.,
visual message) or any “sound wave” (i.e., audible message) intended to dissuade people from
patronizing the business enters the premises. Whatever the purpose or intent of this measure, its
language plainly covers a substantial amount of constitutionally protected expression, and it is
therefore unconstitutionally overbroad. On April 2, the ACLU of Utah and cooperating attorney
Brian Barnard filed a lawsuit on behalf of the nonprofit organization Utah Animal Rights Coalition
challenging the constitutionality of the new law. On May 4, United States District Court Judge
Bruce S. Jenkins agreed that the law poses a substantial threat to protected expression and
granted our request for a preliminary injunction. As a result, on May 5 our clients were able to
conduct their weekly anti-fur demonstration on the public sidewalk in downtown Salt Lake City
without fear of being arrested and jailed for their free speech activities. (Read our letter urging
Governor Leavitt to veto HB 322).
Enhanced penalties for hate crimes fails.
In one of the many ironies of this legislative session, while legislators had no trouble enhancing
criminal penalties for actions against “animal enterprises,” they declined to enhance penalties for
hate crimes committed against racial, ethnic, and sexual minorities. Senate Bill 37 Hate Crimes
Amendments would have provided enhanced criminal penalties for crimes committed with bias
against any “group.” This approach is patterned on a Texas statute that the Texas legislature
recently repealed in favor of a more specific listing of the protected groups, an approach that is
consistent with federal anti-discrimination laws. Regardless of the approach, the ACLU is
concerned that as applied, “hate crimes” laws are likely to compromise protected First Amendment
expression. To decrease this possibility, we have advocated that these laws contain provisions
prohibiting prosecutors from proving the “bias” element with evidence of defendants’ mere abstract
beliefs or their membership in an organization that advocates those beliefs. An amendment to SB
37 sought to address that concern by requiring that the defendant’s bias be “demonstrated by the
defendant’s actions at the time the offense was committed.” Despite repeated attempts to get SB
37 out of the House Rules Committee, the House of Representatives refused to vote on the bill.
Our hope is that any future efforts to amend the current hate crimes law will be patterned on
established federal and state precedent and will not allow enhanced punishments simply because
of a defendant’s unpopular or even odious beliefs.
Two bills address the rights of prison inmates to due process and safety.
With the passage of Senate Bill 172 Postconviction DNA Testing, Utah joins those states that have
already implemented procedures allowing for post-conviction DNA testing. SB 172 applies to all
inmates convicted of a felony offense who assert their innocence and for whom DNA evidence
exists. Senate Bill 4 Prohibition of Intimacy with Person in Custody makes it a crime for prison
guards to engage in sexual relations with prisoners. While this law is an important step in ensuring
the safety of prison inmates, it is also distressing that it was not on the books until this year.
Individuals granted some protections from SLAPP suits.
The passage of House Bill 112 Prevention of Retaliatory Lawsuits reinforces the principle that
democracy requires the active involvement, input, and consent of the public. HB 112 seeks to
discourage “SLAPP” suits – “strategic lawsuits against public participation” – a relatively new
litigation strategy used by large companies to silence their critics who exercise their First
Amendment rights by speaking out at public meetings, circulating neighborhood petitions, or
talking to the press about their concerns. Generally, these types of lawsuits ask for enormous
sums of money, and many citizens choose to cease their activist work rather than hire defense
attorneys and risk having to pay millions of dollars in damages. Because of the First Amendment
issues involved, ACLU affiliates across the country have represented defendants in this type of
litigation and advocated for legislation that protects activists from SLAPP suits. We were therefore
pleased by the passage of HB 112, which provides new legal options for defendants. Under the
statute, if a defendant “believes that the action is primarily based on, relates to, or is in response to
an act of the defendant while participating in the process of government and is done primarily to
harass the defendant,” then the defendant can ask a judge to rule “as expeditiously as possible”
whether there is evidence that the case was intended to silence protected expression, thus
preventing the accumulation of costly legal fees. If the judge dismisses the case, then the
defendant may file a counter claim to receive costs and reasonable legal fees.
Law limits the political ability of labor unions.
While HB 112 strengthens public participation in government proceedings, House Bill 179 Voluntary
Contributions Act modifies labor and election laws to restrict the ability of unions to take part in the
political process. The new law requires labor organizations to create a separate fund for political
contributions, but does not extend this requirement to corporations, which can continue
contributing campaign cash from their funds without the approval of their customers or
stockholders. It is troublesome that the government is regulating the organizational and financial
activities of unions and their members, since as an associational right, union members should be
able to govern their own organizations, set their own dues, elect their own leaders, and determine
how and where their political contributions will be spent.
Bill that would have had serious First Amendment problems amended.
In an attempt to prevent minors from entering into plural marriages, Senate Bill 146 Performing
Unlawful Marriages modified the state marriage provisions to make it a third degree felony for
parents or guardians to allow their underage children to enter into unlawful marriages. The first
version of the bill was troubling because it also made it a class A misdemeanor for a parent or
guardian to encourage or promote such unlawful marriages. This prohibition could easily have been
used to target polygamous families who choose to teach certain religious beliefs to their children,
including the advocacy of plural marriage. Thanks in large part to the lobbying activities of the
Women’s Religious Liberties Union, which, like the ACLU, supports the right of consenting adults
to make their own relationship choices and live according to their conscience, the sponsor removed
that portion of the bill.
Sex offender registry becomes even more expansive.
Lawmakers passed two bills broadening the scope of Utah’s sex offender registry, already one of
the most expansive sex offender databases in the country. House Bill 237 Sex Offender Registry
extends registration requirements to individuals convicted by other states or the United States
government of an offense, which if committed in this state, would have required registration. The
new law applies to any person who is “in the state for over 14 consecutive days, or for an aggregate
period exceeding 30 days, during any calendar year,” and also requires registration of individuals
found not guilty by reason of insanity. Another successful bill, House Bill 22 Sex Offender Lifetime
Reporting Amendments, requires those convicted of certain sexual offenses to register annually for
their entire lifetime. According to the new law, the registration “is not subject to exceptions and
may not be terminated or altered during the offender’s lifetime.” One bill that failed was House Bill
93 Expungement of Certain Felony Records, which would have prohibited the expungement of “any
registerable sex offense” or “any attempt, solicitation, or conspiracy to commit any registerable sex
offense.” Click here for additional information about Utah’s Sex Offender Registration System.
Due process rights for highway roadblocks codified.
House Bill 122 Administrative Traffic Checkpoint Amendments puts into state law a February 2000
decision by the Utah Supreme Court restricting the use of roadblocks only for those violations that
are directly related to public safety, such as drunken driving. Like the court decision, the new law
attempts to decrease the potential for roadblocks to become pretextual stops for any violation of
the law by requiring that they have a defined purpose. Importantly, HB 122 also makes it illegal for
law enforcement to erect fake roadblocks by posting signs along a highway warning motorists that
a checkpoint is ahead with police and drug-detecting dogs even though no checkpoint exists, and
then citing those motorists who maneuver to avoid the inconvenience of the road block.
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