Frederick Mark Gedicks

Guy Anderson Chair & Professor of Law
Brigham Young University Law School
Provo, UT 84602-8000

February 19 (as corrected February 20), 2018

Senator Deidre M. Henderson, Chair, dhenderson@le.utah.gov
Senator Karen Mayne, Ranking Minority Member, kmayne@le.utah.gov
Senate Rules Committee
Utah State Senate
P.O. Box 145115 Via U.S. & Electronic Mail
Salt Lake City, UT 84114

RE: Constitutionality of Down Syndrome Nondiscrimination Abortion Act

Dear Senators Henderson and Mayne:

Planned Parenthood of Utah has asked that I supply the Senate Rules Committee with my
opinion about certain matters relating to the currently pending Down Syndrome
Nondiscrimination Abortion Act, H.B. 205, 63rd Leg., Gen’l Sess. (Utah 2018). Specifically, it
asked my opinion of (i) the determination of the Utah Office of Legislative Research and
General Counsel that H.B. 205 “has a high probability of being declared unconstitutional by a
court,” id., Legislative Review Note, ¶ 1; and (ii) contrary testimony by William C. Duncan of
the Sutherland Institute that there is reason to believe that H.B. 205 would withstand federal
constitutional challenge, id., Minutes of the House Judiciary Standing Committee audio
recording 1:34:54 to 1:42:04 (Jan. 25, 2018),
http://utahlegislature.granicus.com/MediaPlayer.php?view_id=2&clip_id=22186&meta_id=7954
36.1

I have taught classes covering the Due Process Clauses of the 5th and 14th Amendments for more
than 30 years. I also research and write in this area. My c.v. is included with this letter for your
information.

My academic title is provided for information and identification only. The views expressed
herein are my own and do not necessarily reflect those of Brigham Young University or its
sponsoring church.

H.B. 205

I have reviewed the text of H.B. 205 and listened to Mr. Duncan’s testimony about its
constitutionality. Among other things, H.B. 205 would enact proposed Utah Code § 76-7-310(2),
which would require that women receiving a diagnosis of a Down syndrome fetus receive
parental support and medical specialist referrals; proposed § 76-7-310(3), which would

1
Mr. Duncan’s name is misspelled in the Committee Minutes.
categorically prohibit abortions performed solely because the fetus has or is feared to have Down
syndrome; and proposed § 76-7-310(4), which would impose criminal liability on medical
providers who perform any such abortions (though women undergoing such abortions are
expressly immunized from criminal liability).

Opinion

It is my opinion that a court applying relevant decisions of the U.S. Supreme Court would almost
certainly uphold proposed § 76-7-310(2), but would almost certainly invalidate proposed §§ 76-
7-310(3) and (4) as applied to previability abortions. Consequently, I agree with legislative
counsel that there is a “high probability” that H.B. 205 would be found unconstitutional, to the
extent this determination applies to previability abortions prohibited and criminalized by
proposed §§ 76-7-310(3) & (4). I respectfully disagree with Mr. Duncan’s apparent testimony to
the contrary.

Analysis

Roe v. Wade, 410 U.S. 113 (1973) held that “a woman’s decision whether or not to terminate her
pregnancy” is a component of the liberty protected by the Due Process Clause of the 14th
Amendment. Id. at 153. The current contours of this right were laid out in Planned Parenthood
of S.E. Penn. v. Casey, 505 U.S. 833 (1992) (plurality opinion), which the Court has followed in
its subsequent abortion decisions. E.g., Stenberg v Carhart, 530 U.S. 914, 920, 929-30, 938
(2000); Ayotte v. Planned Parenthood of N. New Engl., 546 U.S. 320, 327-28 (2006); Gonzales
v. Carhart, 550 U.S. 124, 145-46, 156-59, 163-64 (2007); Whole Woman’s Health v. Hellerstedt,
136 S.Ct. 2292, 2300, 2309, 2312, 2320 (2016).

Casey provides that prior to “viability”—the point in the pregnancy at which the fetus is capable
of surviving outside the womb—women may choose whether to terminate or to continue their
pregnancies. 505 U.S. at 846, 870-71. States may regulate abortion prior to viability in support of
their interest in protecting fetal life,2 id. at 846, 871-74, but only if such regulations do not
impose an “undue burden” on the woman’s right to choose abortion, id. at 874, 877. An abortion
regulation is unduly burdensome if its “purpose or effect” is to place “a substantial obstacle in
the path of a woman seeking an abortion of a nonviable fetus.” Whole Woman’s Health, 136
S.Ct. at 2300, 2309, 2312 (quoting Casey, 505 U.S. at 877) (internal quotation marks deleted).

Prior to viability, therefore, a woman’s right to terminate her pregnancy is paramount and may
not be overridden by the state. See Casey, 505 U.S. at 877-78. The State may legitimately seek to
protect previable fetal life by informing the woman’s choice with accurate relevant information,
and requiring a reasonable waiting period after she receives it before the abortion is performed.
Id. at 872-73, 878. It is not until after viability, however, that the State’s interest in protecting
fetal life becomes sufficiently weighty that it generally outweighs the woman’s right to terminate
her pregnancy (though even then it must allow abortions which are necessary to protect the
mother’s life or health). Id. at 879 (affirming Roe, 410 U.S. at 164-65).

2
Casey also recognized the legitimacy of state’s interest in protecting the health of the pregnant woman in
connection with previability abortions, but this interest is not implicated by H.B. 205.
Accordingly, in Casey itself the Court upheld legally required disclosures about the abortion
procedure, the development of the woman’s fetus at the time she seeks an abortion, the legal
obligation of the father to pay child support, and the availability of adoption and other relevant
social services should she bring her pregnancy to term. 505 U.S. at 881-84. Casey also upheld a
provision mandating that a woman wait at least 24-hours after receiving such information before
undergoing an abortion. Id. By contrast, no decision of the Court since Roe has upheld a flat ban
on previability abortions or the imposition of criminal liability on medical providers for
performing them.

Proposed § 76-7-310(2) requires that pregnant women whose fetuses are diagnosed with Down
syndrome be provided with referrals to a support group for parents with Down syndrome
children, and to a medical provider knowledgeable about caring for such children. This provision
closely resembles mandatory disclosure and notice requirements upheld by the Court in Casey. It
is thus very likely that a court would uphold proposed § 76-7-310(2) as a constitutionally valid
regulation which furthers Utah’s legitimate interest in protecting prenatal life, including the lives
of fetuses diagnosed with Down syndrome, prior to viability.

By contrast, proposed §§ 76-7-310(3) and (4) categorically ban all abortions conducted solely
because the fetus has or is feared to have Down syndrome, and impose criminal penalties on
medical providers who perform such abortions. A categorical ban and criminalization of a class
of previable abortions have both the purpose and effect of “placing a substantial obstacle in the
path of a woman seeking an abortion of a nonviable fetus.” As the testimony of the sponsor
suggested, the purpose and effect of these provisions are not “to inform the woman’s free
choice,” but to entirely displace it with the choice of the state. See Testimony of Rep. Karianne
Lisonbee, audio recording at 1:31:25-35.

Casey and its progeny have repeatedly affirmed the constitutionally protected right of women to
choose to terminate or to continue a previable pregnancy without undue interference from the
state. E.g., Whole Woman’s Health, 136 S.Ct. at 2300; Gonzalez, 550 U.S. at 146; Stenberg, 530
U.S. at 920; Casey, 505 U.S. at 877-78. Sections 76-7-310(3) and (4) violate this right by
banning and criminalizing previability abortions whenever they are solely motivated by a
diagnosis or fear of Down syndrome. The provisions are thus undue burdens on the protected
right to terminate one’s pregnancy prior to viability.

Sections 76-7-310(3) and (4) are not saved by their imposition of criminal penalties only on
abortion providers. If H.B. 205 becomes law, it is overwhelmingly likely that abortion providers
within Utah will obey it, making abortions of previable Down syndrome fetuses unavailable
within the state to women who have a constitutional right to choose them. This is a substantial
obstacle to a woman’s right to choose a previability Down syndrome abortion, and thus an undue
burden on that right.

Nor may these sections withstand constitutional challenge because they prohibit and criminalize
only a relatively small number of all abortions currently performed in Utah. An abortion
regulation constitutes an undue burden if it imposes a substantial obstacle in all cases to which
the regulation applies; it does not matter that all such cases might constitute a small percentage
of all abortions performed or of all women of reproductive age. Cf. Whole Woman’s Health, 136
S.Ct. at 2320 (holding that “the relevant denominator” in determining whether an abortion
regulation constitutes a substantial obstacle “is those women for whom the provision is an actual
rather than an irrelevant restriction.”) (brackets and internal quotation marks deleted). Sections
§§ 76-7-310(3) and (4) prohibit and criminalize all abortions performed solely because the fetus
has or is feared to have Down’s syndrome, and thus constitute a substantial obstacle to the choice
of all women who are pregnant with such a fetus.

Mr. Duncan’s Testimony

Mr. Duncan’s testimony did not clearly differentiate the information and referral provisions of
H.B. 205 from its prohibition and criminalization provisions. He generally suggested that the
state has legitimate interests in protecting fetal life, and in using the law to teach respect for that
life. As I have shown above, these interests are sufficient under relevant Supreme Court
decisions to justify the information and referral provisions of proposed § 76-7-310(2), but not the
prohibition and criminalization provisions of proposed §§ 76-7-310(3) and (4). Consequently, I
agree with his testimony only to the extent that it applies to § 76-7-310(2).

Mr. Duncan also testified that attorneys would likely offer pro bono assistance to Utah in
defending H.B. 205 if it becomes law and is constitutionally challenged. Another cost to
defending H.B. 205 would be liability for the fees and costs of any successful constitutional
challenge under 42 U.S.C. § 1988, which Mr. Duncan did not address.

Conclusion

As a matter of personal morality, I share the goal of H.B. 205 that pregnancies involving unborn
Down syndrome children be brought to term. The bill’s information and referral provisions are
constitutional means of encouraging women carrying such unborn children to bear and raise
them, as are other measures open to the Legislature, such as increasing the availability of social
services for parents of special-needs children.

Nevertheless, my sympathy with the goal of H.B. 205 cannot alter the constitutional reality that a
court is very likely to invalidate H.B. 205’s prohibition and criminalization provisions as they
apply to previability Down syndrome abortions.

Very truly yours,

Frederick Mark Gedicks

cc: Sen. Wayne L. Niederhauser, Senate Majority Leader, wniederhauser@le.utah.gov
Sen. Gene Davis, Senate Minority Leader, gdavis@le.utah.gov
Ms. Heather Stringfellow, Planned Parenthood of Utah, heather.stringfellow@ppau.org
Mr. William C. Duncan, The Sutherland Institute, SI@sifreedom.org