A leaked U.S. Supreme Court draft opinion obtained by Politico would seem to indicate the court is poised to strike down the landmark abortion rights case Roe v. Wade. While nothing is official until the court releases its opinion, if the justices do indeed overturn Roe, change would likely happen quickly in Utah.
That’s because, in 2020, Utah passed a so-called trigger law in SB 174.
“A trigger law is a law passed by a state in anticipation of the possibility of a change in constitutional jurisprudence,” said University of Utah law professor RonNell Andersen Jones.
“It is –– just like its name suggests –– triggered by the Supreme Court opinion,” said Andersen Jones.
It isn’t just Utah, either.
“A number of states across the country in recent years passed these, looking ahead to the possibility that Roe v. Wade or some piece of the Roe doctrine would be reversed by the Supreme Court,” she said.
If the decision of the court follows what is written in the draft, then it’s likely a patchwork system would develop across states — between trigger laws and current protections, something like that exists in the Mountain West. The aftershocks of the leak have both sides of the debate intently waiting on the eventual ruling which is expected before the end of the court’s term in late June or early July.
This interview has been edited for length and clarity.
Caroline Ballard: What trigger law, or laws, are on the books and how would they play out in Utah if Roe v. Wade is overturned?
RonNell Andersen Jones: This law in Utah would make nearly all abortion at any stage of pregnancy illegal, with three exceptions that are crafted to be quite narrow.
The first is that the abortion is necessary to avert the death or risk of serious, substantial, irreversible impairment of major bodily function to the pregnant woman. The second is that a fetus has a lethal defect or a brain abnormality that's uniformly diagnosable, and two maternal health doctors agree to this. And the third is rape or incest, but only if it's reported to law enforcement or proper authorities. So three exceptions, but anything outside of those exceptions, Utah's law triggered by the hand down of a reversal of Roe, would essentially make abortion illegal across the state.
CB: How would that translate to one person getting an abortion?
RAJ: Most people seeking abortions would not be able to do so under the new trigger law. And this would be the case in a number of states across the country that have similar laws on the books. And so the change is going to be swift and it's going to be significant. And it looks to be something that would be quite immediate.
CB: This document Politico obtained is still a draft opinion. Could it change?
RAJ: Sure. The question is whether the leak of it might impact its ability to change. In modern history, early drafts of opinions just haven't leaked. Early drafts of opinions quite regularly change from the time of that early draft to the time that the court announces them. Indeed, votes in major cases sometimes change. Justices say to each other, you know, ‘I will join the opinion, but only if you change this’ or ‘I will not join if this stays in.’ The real question here is what impact the leak itself will have on the justices’ process, whether they will now feel free to alter votes or language or analysis, or whether they will somehow feel pressured to keep things as is or release the opinion sooner. We're really in uncharted territory here.
So the leak is an important part of the substance of the story because it gives rise to a question about how or whether the substance of the opinion might still change between now and the end of the term or how it might have changed since this February draft was circulated.
CB: Will there be a legislative or legal reaction in Utah?
RAJ: Presumably, the legislature in 2020 enacted the trigger law on the assumption that it was the preference of the voting majority in the state. So I'm not sure that there's a remaining legislative debate that we see on the immediate horizon in Utah. Instead, the debate may be a policy debate or wider dialog about what the next steps look like in this new, very changed constitutional terrain.