SALT LAKE CITY — The Utah Supreme Court has canceled arguments in the lawsuit challenging the state's near-total ban on abortion while it explores the impact of a rule change pushed through by the legislature.
In an order obtained by FOX 13 News on Monday, Associate Chief Justice John Pearce gave lawyers for Planned Parenthood Association of Utah and the Utah Attorney General's Office notice that the justices were delaying things. The state's top court originally agreed to hear an appeal, challenging a lower court judge's ruling granting an injunction keeping Utah's near-total abortion ban from being enforced.
"Since then, the Utah Legislature passed House Joint Resolution 2 that amended Utah Rule of Civil Procedure 65A in two ways potentially material to whether interlocutory review continues to be warranted. H.J.R. 2 modified the standard to grant an injunction and provided a mechanism for a court to reconsider some previously granted injunctions," Justice Pearce wrote.
When the U.S. Supreme Court overturned Roe v. Wade, Utah's "trigger law" that bans abortion — except in cases of rape, incest or the health of the mother — went into effect. Planned Parenthood sued and 3rd District Court Judge Andrew Stone granted a preliminary injunction, blocking the law from going into effect. The state appealed Judge Stone's decision to the Utah Supreme Court, which kept the injunction in place and scheduled arguments for next month in the case.
"There used to be two principal ways to get a preliminary injunction. One was you’re likely to succeed on the merits, the other was this presents some novel issues we need more time," said Tenielle Brown, associate dean of research at the University of Utah's S.J. Quinney College of Law.
That changed when the Utah State Legislature this year passed HJR2, which removed the "novel issues" aspect of an injunction and allowed it to be retroactive. Now, the only standard in Utah to get a preliminary injunction is if a party to the lawsuit is likely to "prevail on the merits."
"There is likely to be a constitutional challenge because of the retroactive application," Brown told FOX 13 News. "Courts are very suspicious of the retro-application of civil procedure laws and also lots of other laws. We don’t like laws that change the state of play after the fact."
But it's enough for the Utah Supreme Court to postpone oral arguments while they wrestle with the impact of HJR2. Justice Pearce called for additional briefing from Planned Parenthood and the Utah Attorney General's Office.
Brown likened the legal wrangling to a football game.
"The goalposts have changed. Because the legislature took a wider possibility of granting an injunction and narrowed it and said now it’s going to be harder to get a preliminary injunction," she said. "Planned Parenthood could argue 'our kick was good, we would have made it anyway, even with the narrow goal posts.' The question is do we go back and do we review that play? Or do we just start over and say the rules have changed, narrower goal posts, let’s start from scratch."
The Utah Attorney General's Office declined to comment on the state supreme court's decision on Monday.
"The Court canceled the argument to provide additional time for the parties to file supplemental briefs about whether the government's appeal warrants review at this time, or should be reserved to a later stage of litigation," Planned Parenthood Association of Utah's interim president Sarah Stoesz said in a statement to FOX 13 News. "No matter what, the trigger ban is unconstitutional, and abortion remains legal in Utah. We will continue fighting in any court, at any time, to protect abortion in Utah."
The impact of the Utah Supreme Court's decision means the case is delayed again. Abortion remains legal in the state up to 18 weeks. However, the Utah State Legislature this year also passed a law stripping abortion clinics of their licensing. Abortions will only be performed in hospitals and medical clinics by the end of this year.
