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The fate of Utah’s abortion law could rest on lawmakers changing the rules on injunctions

The dome and the state flag of Utah seen atop the Capitol on the first day of the 2023 Utah Legislative Session, Jan. 17, in Salt Lake City.
Briana Scroggins
special to KUER
The dome and the state flag of Utah seen atop the Capitol on the first day of the 2023 Utah Legislative Session, Jan. 17, in Salt Lake City.

If lawmakers have their say about it, the rules around how court injunctions are granted by Utah judges might soon change. A joint resolution on the matter has cleared the House and is waiting to be heard in the Senate.

HJR2 could have implications on several high-profile cases, including abortion and transgender rights. If the resolution is successful, injunctions in those cases could be lifted unless a judge can show a “substantial likelihood” that the case will succeed.

During a Jan. 27 committee hearing, resolution sponsor Rep. Brady Brammer, R-Pleasant Grove, said the injunction blocking the state’s ban on nearly all elective abortions, “triggers this type of consideration.”

He argued the change would better balance the legislative and judicial branches of government and allow laws to better reflect the will of Utah legislators and voters.

“Those interests that we have weighed and that we have listened to our constituents and listened to others and worried about and stressed about and lost sleep over,” he said. “Those interests are no longer being addressed under the law because a court has enjoined the law from going forward.”

A Utah State Bar memo outlining the organization’s opposition to the resolution was published by The Salt Lake Tribune. Brammer called the memo release a “political stunt.”

In a public statement, the bar said it opposes the resolution “on the grounds that it will hinder access to justice and adversely affect the administration of the courts.” It went on to say the bar “takes no other position on any other issue that may be driving this bill.”

Representatives explained the bar does not oppose the Legislature’s right to make the change, but it worries about the implications it could have on current and future cases.

“We are concerned that there's a fairness aspect to that,” said General Council Nancy Sylvester. “And of course, we brought up the access to justice issues.”

“The bar's position is simply that as a policy matter, and because of the increased cost that litigants would face if someone were unhappy with an injunction that fits the new criteria that have been suggested, then that's going to simply make litigation more expensive,” added Bar 3rd Division Commissioner Mark Morris.

Brammer took issue with the Utah State Bar’s stance, claiming no evidence has been presented that backs up their claims.

“For the bar to take the position that this will impact justice, that all these people will be impacted but have not a scintilla of evidence before doing so, that's irresponsible,” Brammer said.

Other lawyers who spoke during the hearing offered conflicting testimony. Some claimed only a small number of cases could be impacted, others said it could be many.

“I would suggest it's not fair to say to the bar, ‘show me, you know, the 1,000 or 100 orders that this might affect,’” Morris said. “The bar is not in a position to start combing through court files, through the state and federal courts of the state, looking for these things. Nor do I think it's fair to say individual attorneys now have to come forward and say this is going to really hurt my client.”

Sen. Michael Kennedy, R-Alpine, summed up his thoughts on the discussion and dense legal language of the resolution.

That was like a really slow, intellectual and very boring tennis match going back and forth, watching and listening to that,” he said.

In a statement sent to KUER, the Planned Parenthood Association of Utah said it believes that if HJR2 passes, the injunction blocking the trigger law would not immediately be lifted.

“Instead, the state would need to file a ‘motion for reconsider’ based on the new standards that HJR2 creates,” they said. “This would result in a series of motions and an eventual hearing before Judge Stone to evaluate the injunction.”

HJR2 is currently awaiting debate and a final vote in the Senate.

Updated: February 3, 2023 at 5:01 PM MST
This story was updated with comment from Planned Parenthood of Utah, including their interpretation of the effect this proposed law would have on the injunction against Utah's trigger law.
Sean is KUER’s politics reporter.
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