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ACLU of Utah Comments on HB 241 “Partial Birth Abortion Amendments”

12 February 2003 Published in Legislative Work

Health and Human Services Committee
Utah State Capitol
Salt Lake City, Utah 84114

February 13, 2003

RE: H.B. 241 “Partial Birth Abortion Amendments”

Dear Committee Members,

The ACLU of Utah would like to address several major constitutional defects in House Bill 241, “Partial Birth Abortion Amendments,” that will likely subject the bill to legal challenge. First, H.B. 241 does not contain an exception for instances in which an abortion is necessary to protect the pregnant woman’s health. The Supreme Court of the United States, since Roe v. Wade, has consistently required BOTH health and life exceptions for the pregnant woman when the government attempts to prohibit abortion. Any prohibition on abortion that does not contain both exceptions is unconstitutional. See Stenberg v. Carhart, 530 U.S. 914 (2000).

H.B. 241 contains an exception only for abortions “necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, physical injury, including a life threatening physical condition caused by or arising from the pregnancy itself.” This language does not constitute a “health” exception. Rather, this exception applies only where the woman’s life (not health) is at stake, and even then, it is totally inadequate because it is so narrow. Therefore, without a “health” exception and an adequate life exception, H.B. 241 is unconstitutional. See Stenberg v. Carhart, 530 U.S. 914 (2000); Planned Parenthood v. Casey, 505 U.S. 833 (1992); Roe v. Wade, 410 U.S. 113 (1973); Doe v. Bolton, 410 U.S. 179 (1973).

In addition, the definition of banned conduct is unconstitutionally overbroad. H.B. 241 is not a narrowly targeted ban of a single procedure. Rather, it bans many safe, common abortion procedures used in Utah, including D&E, the most common method of abortion used in the second trimester of pregnancy (before fetal viability). The Supreme Court made clear in Stenberg that a statute that forbids D&Es endangers women’s health and imposes an unconstitutional “undue” burden on the right to reproductive choice.

To conclude, we urge you not to take further action on this bill. It is clearly unconstitutional and will not survive legal attack. Please feel free to contact me at (801) 521-9862 x 103 if you have any questions or comments about the ACLU’s position on this bill.

Sincerely,

Janelle P. Eurick
Staff Attorney