Courts in Utah and Kansas will hear arguments next week challenging abortion laws that took effect after the U.S. Supreme Court overturned Roe v. Wade.
On Aug. 8, Utah’s Supreme Court will hear arguments regarding a trigger ban that has been on hold for more than a year.
That same day, a district court in Kansas will consider what information abortion providers should be required to provide patients seeking chemical abortions.
Abortion Ban on Hold
The law being challenged in Utah is a 2020 ban on all abortions in the state except for those involving rape, incest, serious health risk to the mother, fetal brain abnormalities, or otherwise lethal defects.A July 2022 preliminary injunction has kept that hold in place, prompting the state to appeal to the Utah Supreme Court.
In its request for an appeal, the state noted that Utah has a long history of outlawing abortion that pre-dates Roe.
“When left to decide for itself, Utah has prohibited abortions, with limited exceptions, dating back to territorial days. Roe largely took that authority away. Dobbs restored it,” contended Melissa Holyoak, Utah solicitor general. “With decision-making authority on this issue back in the hands of citizens and their duly elected representatives, the State returned to its long-held policy of prohibiting abortions with limited exceptions.”
Ms. Holyoak further argued that Planned Parenthood lacked standing to bring the case, noting, “The overwhelming majority of PPAU’s Complaint focuses on arguments about the legal rights of, and harms to, third-party patients who are not before the Court.”
Concluding that the abortion provider was unlikely to win on its claims, she asked the court to stay the lower court’s preliminary injunction and hear the state’s appeal on why the injunction should be removed.
Conversely, Planned Parenthood has argued that it does have the standing to sue on behalf of patients and that those patients would be subjected to a “cataclysmic reordering” of their private lives after a half-century of legalized abortion.
The Utah Supreme Court ultimately granted the state’s request for appeal but allowed the injunction to remain in place.
While oral arguments were initially scheduled to take place in May, the court canceled that hearing after the Utah Legislature narrowed the circumstances under which a preliminary injunction or temporary restraining order can be granted. The rule change also allows for the retroactive review of orders that were granted prior to the new standard.
However, after reviewing additional briefs from both parties—and after a law banning abortion clinics in Utah was also blocked by Judge Stone—the state’s high court rescheduled the hearing.
Informed Consent or ‘Biased Scheme?’
Another lawsuit in Kansas challenges both new state regulations on chemical abortion providers and a longstanding requirement that patients wait 24 hours after first seeing a provider before having an abortion.The state’s mandatory waiting period originated in 1997 with its enactment of the Woman’s Right to Know Act. In April, legislators amended the law to include a new requirement that abortion providers display signage notifying patients that “it may be possible to reverse” the chemical abortion process.
During a chemical abortion, also known as a medication abortion, a patient is prescribed two different drugs: mifepristone and misoprostol. Mifepristone, taken first, blocks the uterine absorption of the hormone progesterone, which is needed to maintain the pregnancy. Misoprostol causes the uterus to contract and expel the unborn child, completing the abortion.
In the filing, complainants Planned Parenthood Great Plains and other local abortion providers allege that Kansas has implemented a “Biased Counseling Scheme” to stigmatize abortion and deny women their “fundamental right” to have one.
The complaint seeks relief in the form of a declaratory judgment that the regulations in question are unconstitutional and a preliminary injunction blocking their enforcement for the time being.
Additionally, like with the Utah case, the state contended that the complainants did not have standing to file the case given that they did not stand to suffer any violation of their own rights or other irreparable harm.
“The Woman’s Right to Know Act became law in 1997 and has since been amended five times. All Plaintiffs concede they have complied with the Act for years. Their ability to comply with the Act for decades and their delay in bringing this suit foreclose emergency relief here,” the state argued.
After the complaint was filed, Kansas officials agreed not to enforce the new medication abortion law until the court reached a decision on a preliminary injunction.
At Tuesday’s hearing, scheduled for 2 p.m. CT, District Judge K. Christopher Jayaram will hear arguments from both sides on whether the new and existing regulations should be blocked.
