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Legislative Update: HB205 (Down syndrome Abortion Ban)

06 March 2018 Published in Legislative Work

Legislative Update: HB205 (Down Syndrome Abortion Ban) 

A last-minute substitute could turn HB205 into a "trigger bill"--a law that is only activated after a future court decision clears the way for more abortion bans.

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HB205: Down Syndrome Nondiscrimination Abortion Act Chief Sponsor: Karianne Lisonbee (HD 14); Senate Sponsor: Curtis S. Bramble (SD 16)

On Tuesday, March 6, HB 205 is expected to have its 2nd reading at the Utah State Senate. As drafted, this bill would make it a crime for doctors in Utah to perform abortions if the provider or the woman believes the fetus has or may have Down Syndrome. Accompanying this bill is a rare and worrisome Legislative Review Note. It warns that if passed into law, HB 205 would have a “high probability that a court would declare the legislation to be unconstitutional.”

But the latest twist to HB205, which was introduced on the first day of the legislative session back in January, is a 3rd Substitute proposed by Sen. Lyle Hillyard (R-Logan). This new language would turn HB205 into a "trigger law," meaning  it would only take effect if something happens first. According to the text of Sen. Hillyard's substitute, the trigger would be:

“that a court of binding authority holds that a state may prohibit the abortion of an unborn child {if}before the unborn child is viable outside of the{ pregnant mother's} mother if the sole reason for {seeking }the abortion is {because}that the unborn child has or may have Down syndrome.”

Sen. Hillyard's 3rd Substitute is not yet adopted as of 5pm Tuesday, March 6. But if it is approved by the Senate, the new language would not immediately prevent Utah doctors from providing abortions to women based on their decisions regarding the health of the fetus. The bill would take effect on May 8. 2018... but it woud not prohibit abortions in Utah until an additional court ruling (the bill lists several courts, including the U.S. Court of Appeals for the Tenth Circuit, the U.S. Supreme Court, and the Utah Court of Appeals) holds that a state can ban abortions if the decision is based on a diagnosis of Down Syndrome. 

The earlier versions of HB 205 (which banned these abortions outright without waiting for a future court decision)  passed the Utah House with a 54-17 vote, and the Senate Judiciary, Law Enforcement, and Criminal Justice Committee with a 3-2 vote. Its unconstitutionality has not only been flagged by its accompanying Legislative Note, but by numerous organizations including us—the ACLU of Utah—Planned Parenthood and Alliance for a Better Utah, as well as BYU constitutional law professor, Frederick Mark Gedicks. A few groups, such as Pro-Life Utah, Utah Eagle Forum, and the Sutherland Institute, have come to the bill’s defense, despite the constitutional warning.

As drafted HB205 is a calculated and unconstitutional legislative attack designed to burden women, scare doctors, and chip away at Roe v. Wade—which in 1973 affirmed the legality of a woman's right to have an abortion under the Fourteenth amendment to the Constitution. ACLU affiliates in Ohio and Indiana have challenged similar Down syndrome abortion bans in court in other states racking enormous legal bills footed by taxpayers. In the state of Indiana a similar law was struck down as unconstitutional in the federal district court. 

If amended to only take effect based on a future court decision, the bill becomes a less immediate threat to reproductive rights in Utah--but clearly shows the intent of the legislature to restrict access to safe and legal abortion.

We will all be watching to see if Sen. Hillyard's 3rd Subsittute is adopted, and how HB1205 fares in the final days and hours of the 2018 Legislative Session.

 

 


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