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LegisBlog #1: The 2018 Session Starts with a Bang… and a Ban

22 January 2018 Published in The ACLU of Utah Activist

As opening day pomp and circumstance fades, an anti-abortion bill appears. CapitolHouse steps 1

Utah’s 2018 Legislative Session in Utah began today at 10am (Hint: tomorrow the committee meetings start at 8am).

There were speeches, bad memes, music, and even some humor.

And it speaks volumes about the long weeks ahead that today’s most popular Tweet was the food truck schedule shared by FOX13 political reporter Ben Winslow. 

But today also included a surprise reminder that the bills considered by Utah’s legislators can and will impact or ability to exercise our fundamental rights.  

On Monday morning Rep. Karianne Lisonbee (R-Clearfield) and Sen. Curt Bramble (R-Provo) held a press conference in the Capitol’s Hall of Governors to unveil HB 205, the Down Syndrome Nondiscrimation Abortion Act.”  This bill would make it illegal for healthcare providers to provide an abortion if “prenatal screening or diagnostic test indicates that the pregnant woman's unborn child has or may have Down syndrome.”

In other words, if a woman or couple discover that a fetus has or might have Down Syndrome through one of the multiple tests and screenings that are now available as early as the ninth week of pregnancy, this bill would prohibit an abortion even if the termination was legal under current state and federal law. 

In addition, the bill would require a pathology report, i.e., tissue analysis, for all abortions performed in Utah to determine whether or not the aborted fetus had Down Syndrome. Presumably this pathology is required to double-check that no illegal abortions of fetuses with Down Syndrome occurred. Finally, the bill mandates that any physician who performs an abortion in violation of this proposed law would be guilty of a Class A misdemeanor.

Holy cow, right?

The premise behind HB 205 is not new. In December Gov. John Kasich of Ohio signed into law a similar Down Syndrome abortion ban. That law, which goes into effect on March 22, 2018, would charge medical providers with a fourth-degree felony (punishable by up to 18 months in prison, a $5,000 fine, loss of their medical license, and subject to malpractice lawsuits) if they conduct an abortion after genetic tests reveal the fetus has Down Syndrome. Two other states have approved similar legislation. A broader bill in Indiana that targeted all genetic conditions was found unconstitutional by a federal judge in 2017, and a 2013 law remains in force in North Dakota because the state’s sole abortion provider does not conduct terminations after 16 weeks. In addition, we’ve heard reports of similar “Down Syndrome Abortion Bans” being introduced or re-introduced in state legislatures in Illinois and Louisiana.

What does today’s announcement about HB 205 tell us?

First, it should be a reminder that despite the jokes and pageantry that surround the legislative session, lawmakers also deal with crucial issues like access to legal abortion and reproductive freedom.  HB 205 is a perfect example. Luckily, the sponsors of HB 205 decided to hold a press conference on the first day of the session and reveal the bill text—so we know what we’re dealing with and can mobilize to defeat it.  

Second, we must remain vigilant for other bills like HB 205 that seek to limit and penalize our constitutional rights. After all, the next attempt might not be so transparent. There is a long history in Utah of surprise bills, last-minute agenda revisions, and controversial legislation that seeks to fly beneath the public’s radar

Third, the early debut of HB 205 can mobilize the ACLU and our allies to build coalitions, hone arguments, and work together to defeat it. And it can help us focus on the next bad bills that come along. On Day #1 of the session we don’t know how fast or how far HB 205 will move. But we do know this abortion ban has serious weaknesses that we can highlight. For instance, the legislative general counsel’s office added the following warning to the bill file: “[T]here is a high probability that the court would find the proposed legislation unconstitutional because the legislation violates current case law establishing a woman's constitutional right to a nontherapeutic previability abortion." The warning goes on to cite the 2017 federal district court decision in Indiana that struck down a similar law. The result is that the legislature’s own lawyers are telling them that there is a “high probability” that HB 205 is unconstitutional, will result in costly lawsuits paid for by taxpayers, and will get struck down in court. Besides the fact that Utah would be criminalizing legal medical procedures and restricting a woman’s right to reproductive freedom, the legislative counsel’s warning that “you will get sued and lose in court” sounds like a good reason to vote no on HB 205, too.

The legislative session is upon us and we can expect many more bills like HB 205 to come forward—some more secretly than others. But you can trust that the ACLU of Utah, in cooperation with our allies like Planned Parenthood of Utah, are going to work hard to defeat this bill and others that threaten to curtail our civil liberties.  

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