“Remember the ladies,” Abigail Adams wrote to her husband John Adams in 1776 as the colonies moved toward declaring independence and she looked ahead to the “new code of laws” that her husband and others would ultimately draft. More than 240 years later, a Utah Supreme Court judge hearing arguments on whether a state abortion ban should be allowed to go into effect highlighted how the ladies had not been remembered or included in the 1895 founding of her state.
As Republicans rushed to ban abortion starting in the summer of 2022, judges hit the brakes in some states, and those battles are still playing out. One such case was argued before the Utah Supreme Court this week: a trigger law banning abortion in the state, which was set to go into effect when the U.S. Supreme Court overturned the precedent set by Roe v. Wade, is currently on hold under a lower court’s order in Utah.
Taylor Meehan, a private attorney arguing on behalf of the state, worked hard to tie an abortion ban to the state constitution. “Any searching review of the Utah Constitution leads to this conclusion that abortion is one of those areas where the people left their elected officials free to exercise their judgment and servants of their constituents,” she said.
But Meehan’s argument did not actually hinge on the words of the Utah constitution. “There is an unbroken history and tradition … before 1973, of prohibiting abortion,” she said. “And that unbroken history has to be part of this Court's analysis, rather than present-day policy arguments about the benefits or the or lack thereof of abortion.”
I’m guessing there are other things that had unbroken traditions in Utah law between 1895 and the 1970s that are no longer in state law.
Utah Supreme Court Justice Paige Petersen—part of a court that is majority women for the first time, and entirely appointed by Republicans—had a question. At the 1895 convention that drafted the state constitution, “Women were in the audience, but they weren't any of the delegates,” she noted. That being the case, “How do we know … what they thought the meaning of their rights were?" Peterson asked. "It seems important in this context because women are the ones that experience pregnancy and experience childbirth.”
This is refreshing. Imagine if Republican-appointed U.S. Supreme Court justices would pause to think about the people who were not allowed to participate in drafting the U.S. Constitution, and what they might have wanted or thought.
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Meehan’s argument that “abortion is one of those areas where the people left their elected officials free to exercise their judgment” and reliance on “unbroken history and tradition” are interesting finesses on the Utah constitution being silent on the specific issue of abortion.
But the Utah constitution does say some other things that could conceivably apply to the question of whether an abortion ban was acceptable.
“This enumeration of rights shall not be construed to impair or deny others retained by the people,” for instance. Or, “Frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.” Or, “Both male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges”—like, say, making their own medical decisions? The state constitution, though, has little to say directly about women beyond that. It’s up to the Utah Supreme Court whether the security of individual rights extends to medical decisions about pregnancy in a time when women have somewhat more of a role in setting laws than they did in 1895.