Two Utah Republicans delivered eight cease-and-desist letters to abortion providers, abortion funding organizations and their lawyers claiming violations of the state’s abortion trigger law.
Despite the current preliminary injunction against Utah’s abortion ban, the letters, dated Sept. 15, 2022, were sent by Reps. Kera Birkeland and Karianne Lisonbee and warn of legal action if the recipients don’t stop performing and aiding abortions.
Planned Parenthood Association of Utah, Wasatch Women’s Center, Utah Abortion Fund as well as two national abortion organizations were sent the letters. It also targeted Utah lawyers representing Planned Parenthood in legal proceedings and one doctor.
The cease-and-desist letters, presented on official Utah House of Representatives letterhead, were co-signed by 20 other lawmakers.
In a statement provided to KUER, Planned Parenthood Association of Utah called the letters a “political stunt” meant to “further harass abortion providers and stigmatize patients who need care.”
Furthermore, the association said it has always provided “abortion care in full compliance with current law.” Planned Parenthood said their lawyers “will continue to monitor the situation” and that their doors will remain open to provide care to Utahns.
Third District Court Judge Andrew Stone issued the injunction on July 11. Utah’s abortion trigger law would have banned the procedure in most cases except for rape, incest or maternal health risks. The injunction did not affect a separate 18-week abortion ban which went into effect following the Supreme Court’s overturning of Roe v. Wade.
The lawmakers claim in their letters they can pursue criminal sanctions against anyone currently providing and assisting abortions if the injunction is lifted. That includes sending or receiving the abortion pill.
“Although Judge Stone’s preliminary injunction purports to prohibit ‘future enforcement actions for conduct that occurred during the pendency of this injunction,’ that protection will no longer exist if Judge Stone’s order is vacated or reversed by an appellate court,” the letters advise.
In a follow up statement the day after the letters were sent, Rep. Lisonbee said the letters are “not a legal analysis from the Utah Office of Legislative Research and General Counsel but our opinion and the opinion of the legislators who signed it.”
The text of the injunction that the letters quote reads as follows:
“The Court hereby ENJOINS AND RESTRAINS Defendants and their officers, employees, servants, agents, appointees, or successors from administering and enforcing the Act with respect to any abortion provided while this Order is in effect, including in any future enforcement actions for conduct that occurred during the pendency of this injunction.”
Regardless of the lawmakers’ interpretation, University of Utah law professor Teneille Brown said it’s not possible for people to be prosecuted in the future for acting within the means of current law.
“If Planned Parenthood or the Abortion Fund are not violating the law today because of the judicial injunction, they cannot later be prosecuted retroactively if the law changes,” Brown noted. “That’s a due process violation.”
In an interview with KUER, Birkeland and Lisonbee stood by their statement that anyone assisting or administering an abortion could be punished in the future if the abortion ban ever becomes law.
“I think there's actually some doctors who perform abortions who were misled on what the law is and what this actual injunction means,” Birkeland said. “It means that right now they may not be persecuted [sic] under the law, but they could be later on.”
Lisonbee said the letters’ goal is to “prevent abortions from happening while the law is in effect” and that they “are informing, but also helping providers understand that they could be subject to criminal prosecution.”
For Teneille Brown, the intent behind the lawmakers’ cease-and-desist letter is suspect.
“The letter itself is obviously incorrect and demonstrates a misunderstanding of what an injunction means,” she said. “So the letter has no legal value in terms of actually getting Planned Parenthood or the abortion funds to stop doing what they're doing.”
While Utah’s Planned Parenthood considered it a “stunt,” Brown said it was something far more serious. She argues the 22 lawmakers issuing the cease-and-desist letters and “threatening future prosecution for what today is legal, is an abuse of their official positions” under Section 1983 of the U.S. Code.
“I actually think it's possible that the people who signed this letter could be in contempt of court because they are violating an injunction that was issued by a judge by threatening prosecution and misstating what the law is.”
Birkeland and Lisonbee promised in the letters to introduce a bill during the 2023 legislative session that would “automatically revoke the licenses of any medical professional who violates the trigger ban,” including abortions performed while the preliminary injunction is in place.
They also intend for the bill to give the state attorney general and district attorneys around Utah the power to prosecute violations if a local district attorney fails or refuses to do so.
Lastly, the lawmakers said the bill will prohibit abortion providers and “their accomplices” from using the preliminary injunction “as a defense to prosecution or civil penalties if that injunction is vacated or reversed on appeal.”
