*1
This opinion is subject to revision before final
publication in the Pacific Reporter
IN THE
S UPREME C OURT OF THE S TATE OF U TAH P LANNED P ARENTHOOD A SSOCIATION OF U TAH , on behalf of itself
and its patients, physicians, and staff,
Appellee ,
v. S TATE OF , G OVERNOR S PENCER J. C OX , in his official capacity,
A TTORNEY G ENERAL S EAN D. R EYES , in his official capacity, and M ARK B. S TEINAGEL , in his official capacity as the Director of the
Utah Division of Professional Licensing,
Appellants . No. 20220696 Heard August 8, 2023 Filed August 1, 2024 On Appeal of Interlocutory Order Third District, Salt Lake County The Honorable Andrew H. Stone No. 220903886 Attorneys: [*] *2 Troy L. Booher, J. Frederic Voros, Jr., John Mejia, Salt Lake City,
Hannah Swanson, Wash., D.C., Camila Vega, N.Y.C., N.Y.,
for respondent
Melissa A Holyoak, Solic. Gen., Stanford E. Purser, Deputy Solic.
Gen., Lance F. Sorenson, Asst. Att’y Gen., Tyler R. Green, Salt Lake City, Taylor A.R. Meehan, Arlington, Va., for petitioners A SSOCIATE C HIEF J USTICE P EARCE authored the opinion of the Court, in which J USTICE P ETERSEN , J USTICE H AGEN , and
J USTICE P OHLMAN joined.
C HIEF J USTICE D URRANT filed a dissenting opinion. A SSOCIATE C HIEF J USTICE P EARCE , opinion of the Court:
INTRODUCTION Planned Parenthood Association of Utah (PPAU)
challenges the law Senate Bill 174 enacted (SB 174). SB 174 prohibits abortion at any stage of pregnancy in all but three circumstances. PPAU contends that SB 174 violates rights the Utah Constitution guarantees. PPAU sought a preliminary injunction halting the law’s enforcement while it litigated SB 174’s constitutionality. After an evidentiary hearing, the district court entered the injunction. The State petitioned for interlocutory review and presents two primary arguments. It first argues that PPAU lacks standing to Farah Diaz-Tello, N.Y.C, N.Y., for If/When/How and Utah Association of Criminal Defense Lawyers; Cheylynn Hayman, David C. Reymann, Salt Lake City, Molly A. Meegan, Kimberly A. Parker, Nathaniel W. Reisinger, Wash., D.C., Jessica E. Notebaert, Bos., Mass., for American College of Obstetricians and Gynecologists, American Medical Association, and Society for Maternal-Fetal Medicine; Julie J. Nelson, Millcreek, Neal Goldfarb, Dillsburg, Pa., for Neal Goldfarb; Alison Satterlee, Salt Lake City, Meha Goyal, Jamie L. Lisagor, Alanna E. Peterson, Seattle, Wash., for Utah Abortion Fund and the National Network of Abortion Funds; Thaddeus W. Wendt, Layton, Christopher E. Mills, Charleston, S.C., for American College of Pediatricians.
assert this challenge. The State next argues that the district court abused its discretion when it granted the preliminary injunction.
¶3 PPAU has standing. PPAU satisfies the requirements for traditional standing and possesses the third-party standing that allows it to advance the claims of its patients. The district court acted within its discretion when it
granted the preliminary injunction. Because the State asks us to review the grant of a preliminary injunction, we do not decide the merits of PPAU’s claims that SB 174 infringes on rights the Utah Constitution protects. Rather, we examine whether the district court abused its discretion when it concluded that PPAU had met the then-existing standard for an injunction. The district court did not. PPAU raises serious issues concerning SB 174’s
constitutionality—and serious issues going to the merits is what Utah Rule of Civil Procedure 65A required when the district court evaluated the motion for a preliminary injunction. The district court did not abuse its discretion when it reviewed the evidence the parties presented and concluded that PPAU would suffer irreparable harm if the law were not enjoined, that the balance of harms tips in favor of an injunction, and that an injunction would not be adverse to the public interest. We affirm the district court and allow the preliminary injunction to remain in place while PPAU litigates its claims.
BACKGROUND Two years before the United States Supreme Court
overturned
Roe v. Wade
,
unauthorized abortion “is guilty of a second degree felony,” which carries the risk of monetary fines and up to fifteen years in prison. See TAH C ODE §§ 76-3-301(1)(a), 76-7a-201(3). SB 174 further requires the Department of Health and Human Services (Department) to report physicians who violate the law to the Division of Professional Licensing. See id. § 76-7a-201(5). If a violation occurs at an abortion clinic, the Department is instructed to “take appropriate corrective action” against the clinic, “including revoking the abortion clinic’s license.” Id. § 76-7a-201(4). The Legislature understood that SB 174 would violate the United States Constitution at the time of its enactment. To address SB 174 defines “abortion” as: (1) “the intentional termination or attempted termination of human pregnancy after implantation of a fertilized ovum through a medical procedure carried out by a physician or through a substance used under the direction of a physician”; (2) “the intentional killing or attempted killing of a live unborn child through a medical procedure carried out by a physician or through a substance used under the direction of a physician”; or (3) “the intentional causing or attempted causing of a miscarriage through a medical procedure carried out by a physician or through a substance used under the direction of a physician.” U TAH C ODE § 76-7a-101(1). The term does not include the delivery of a stillborn child or the removal of an ectopic pregnancy. Id. The Legislature has since amended the statutes SB 174 enacted in ways immaterial to our analysis. We cite the versions in effect when the district court entered the preliminary injunction. Under SB 174, an abortion is only permitted when: (1) it is “necessary to avert . . . the death of the woman on whom the abortion is performed” or “a serious risk of substantial and irreversible impairment of a major bodily function”; (2) two maternal-fetal medicine physicians confirm in writing that a fetus has either a “uniformly diagnosable and uniformly lethal” condition or a “severe brain abnormality that is uniformly diagnosable”; or (3) the pregnancy is the result of rape or incest and the physician performing the abortion confirms that the assault was reported to law enforcement. U TAH C ODE § 76-7a-201.
this, SB 174 contained a “[c]ontingent effective date.” See Abortion Prohibition Amendments, S.B. 174, 2020 Leg., Gen. Sess. (Utah 2020) (available at https://le.utah.gov/~2020/bills/static/sb0174. html). SB 174 would become law only after the state legislative general counsel certified to the Legislative Management Committee that “a court of binding authority ha[d] held that a state may prohibit the abortion of an unborn child at any time during the gestational period.” Id. The United States Supreme Court thereafter issued Dobbs
v. Jackson Women’s Health Organization
,
• the right to bodily integrity under article I, sections 1, 7, and 11;
• the right to determine one’s own family composition under article I, sections 2, 25, and 27; • the right to equal protection under Utah’s Equal Rights Provision—article IV, section 1;
• the right to the uniform operation of laws under article I, section 24;
• the right of conscience under article I, section 4; • the right to privacy under article I, sections 1 and 14; and
• the prohibition on involuntary servitude under article I, section 21. *6 U
¶11 PPAU requested, and the district court granted, a
temporary restraining order preventing the State’s enforcement of
the new law. PPAU then sought a preliminary injunction.
In its motion for a preliminary injunction, PPAU first
asserted that it had standing to ask the district court to enjoin
SB 174. PPAU contended that SB 174 causes it to suffer a “‘distinct
and palpable injury that gives rise to a personal stake in the
outcome of the dispute.’” (Quoting
Sonntag v. Ward
, 2011 UT App
122, ¶ 3,
carry its burden under Utah Rule of Civil Procedure 65A. At the time, a party seeking a preliminary injunction needed to demonstrate that
• “[t]here is a substantial likelihood that [it] will prevail on the merits of the underlying claim, or the case presents serious issues on the merits which should be the subject of further litigation”; • it “will suffer irreparable harm unless the order or injunction issues”;
• “[t]he threatened injury to [it] outweighs whatever damage the proposed order or injunction may cause to the party restrained or enjoined”; and • “[t]he order or injunction, if issued, would not be adverse to the public interest.” TAH R. C IV . P. 65A(e) (2014). PPAU maintained that it had raised serious issues of
constitutional significance on six of its claims and was likely to prevail on the merits at trial on these claims. The six claims are:
(1) A “bodily integrity” claim based on the Due Process Clause. See U TAH C ONST . art. I, § 7.
(continued . . .) *7 ¶15 PPAU asserted that it and its staff would suffer harms that a judgment could not compensate, including the threat of criminal prosecution and license revocation. PPAU added that if SB 174 were enforced, its patients would be denied access to “time- sensitive medical care”—thus resulting in irreparable physical, emotional, and economic harm.
¶16 PPAU claimed that any harm the State would endure
because of a preliminary injunction would be “marginal” in
comparison to the harms PPAU and its patients would face if the
court declined to grant an injunction. It pointed to caselaw
suggesting that the “State ‘does not have an interest in enforcing a
law that is likely constitutionally infirm.’” (Quoting
Chamber of
Com. of U.S. v. Edmondson
,
the public interest because the “public has a substantial interest in an injunction blocking a law that fundamentally upsets the longstanding status quo on which Utah women and their families have relied upon for at least five decades.” PPAU supported its motion for a preliminary injunction with several declarations. Dr. David Turok, PPAU’s director of surgical services and
a board-certified obstetrician-gynecologist who provides abortions, attested to SB 174’s impact on PPAU, its staff, and its patients. Dr. Turok explained that under SB 174, “approximately 2,800 Utahns each year will be forced either to remain pregnant against their will; go out of state for an abortion if they can find the means to do so . . . or attempt to obtain an abortion outside of the medical system.”
(2) A “family composition” claim guaranteed by various provisions of article I. See id. art. I, §§ 2, 25, 27.
(3) A claim under the Equal Rights Provision. See id. art. IV, § 1. (4) A claim under the Uniform Operation of Laws Provision. See id. art. I, § 24.
(5) A “freedom of conscience” claim based on the Religious Liberty Provision. See id. art. I, § 4.
(6) A privacy claim based on the Search and Seizure Provision. See id. art. I, § 14.
Dr. Turok emphasized that this last option “may in some cases be unsafe.” Dr. Turok further discussed that even “in an
uncomplicated pregnancy, an individual experiences a wide range of physiological challenges.” He opined that pregnancy “can also exacerbate preexisting health conditions.” Dr. Turok explained that pregnancy “may also induce or exacerbate mental health conditions.” (First citing Kimberly Ann Yonkers et al., Diagnosis, Pathophysiology, and Management of Mood Disorders in Pregnant and Postpartum Women , 117 O BSTETRICS & G YNECOLOGY 961, 963 (2011); and then citing F. Carol Bruce et al., Maternal Morbidity Rates in a Managed Care Population , 111 O BSTETRICS & G YNECOLOGY 1089, 1092 (2008).) Dr. Turok declared that the “economic impact of forced
pregnancy, childbirth, and parenting will also have dramatic, negative effects on Utah families’ financial stability.” He explained that some “side-effects of pregnancy render patients unable to work” and that “pregnancy-related discrimination can result in lower earnings both during pregnancy and over time.” (First citing N AT ’ L P’ SHIP FOR W OMEN & F AMS ., B Y THE N UMBERS : W OMEN C ONTINUE TO F ACE P REGNANCY D ISCRIMINATION IN THE W ORKPLACE 1–2 (2016); and then citing Jennifer Bennett Shinall, The Pregnancy Penalty , 103 M INN . L. R EV . 749, 787–89 (2018).) Dr. Turok opined that even when a patient qualifies for an abortion under one of SB 174’s three exceptions, the paperwork involved “is likely to delay access to care and increase the expense and emotional toll of such a diagnosis.” Dr. Colleen Heflin, a Ph.D. sociologist, addressed SB 174’s
impact on women and families with low incomes. Dr. Heflin testified that “to afford an unexpected medical expense such as abortion, poor and low-income women make trade-offs among basic needs.” She further explained that “virtually all women throughout Utah will be forced to travel out of state, and, . . . in most instances incurring significantly greater travel-related expenses and logistical burdens than if they could obtain an abortion in their home state.” For those women who “could afford travel to another state to obtain an abortion . . . the burden of that travel would force even greater trade-offs in terms of meeting basic needs.”
¶23 Dr. Heflin also discussed the costs of not obtaining an abortion, documented in the University of California, San Francisco’s “Turnaway Study.” She explained that the study found “women who were unable to obtain an abortion were three times more likely to be unemployed six months later, nearly four times more likely to have fallen below 100% of the [federal poverty level], more likely to be receiving public assistance benefits, and more likely to be raising children alone.” Dr. Heflin further reported that these “negative consequences to economic well-being were shown to persist four years later compared to women who were able to obtain an abortion.” (First citing Diana Greene Foster et al., Socioeconomic Outcomes of Women Who Receive and Women Who Are Denied Wanted Abortions in the United States , 108 A M . J. P UB . H EALTH 407, 409, 412–13 (2018); and then citing Sarah Miller et al., The Economic Consequences of Being Denied an Abortion 2 (Nat’l Bureau of Econ. Rsch., Working Paper No. 26662, 2022).) Lauren Hunt, who sits on the Rape Recovery Center’s board of directors, addressed SB 174’s impact on sexual assault survivors. Hunt testified that under SB 174, a rape survivor who becomes pregnant is “forced to disclose the rape to law enforcement in order to obtain” an abortion. She further explained that SB 174 requires that “a survivor must disclose their identity, personal contact information, and invasive details about the rape.” Hunt asserted that providers “may also feel as though they need to report the assault themselves in order to verify that a report has been made,” which “can erode essential trust and transparency between a survivor and the medical provider.” Hunt described the risk that an abortion provider who reports an assault under SB 174 may “disclose the patient’s private health care information involving abortion.” In addition, three PPAU patients whose scheduled
abortions would have been canceled if the law were not enjoined submitted declarations describing how SB 174 would affect them. One patient explained that she would potentially seek an abortion out of state. Another patient described how she would not know where to go if she needed to travel for an abortion and would worry about falling short on rent if she took time off work. The last patient detailed that she would need to find childcare to obtain an abortion out of state, take time off work, and use paid time off that she would typically save to attend her children’s doctor’s *10 appointments. Each patient explained that she would not want to challenge SB 174 on her own because of the time and cost involved. And each declarant expressed a desire to remain anonymous throughout any challenge to SB 174. The American College of Obstetricians and Gynecologists,
the American Medical Association, and the Society for Maternal- Fetal Medicine filed an amicus brief in support of PPAU’s motion for preliminary injunction. The brief discussed the harm SB 174 poses to pregnant patients’ health. For example, it explained that by “removing access to safe, legal abortion, [SB 174] will also increase the possibility that a pregnant patient will attempt self- managed abortions through harmful or unsafe methods.” (Citing Rachel K. Jones et al., G UTTMACHER I NST ., Abortion Incidence and Service Availability in the United States , at 3, 8 (2019).) The briefing further asserted that “methods of self-management outside safe medical abortion . . . may rely on harmful tactics such as herbal or homeopathic remedies, intentional trauma to the abdomen, abusing alcohol or illicit drugs, or misusing dangerous hormonal pills.” (Citing D. Grossman et al., T EX . P OL ’ Y E VALUATION P ROJECT , Knowledge, Opinion and Experience Related to Abortion Self- Induction in Texas 3 (2015).) The brief also noted that the “narrow exceptions” to SB 174
“fail[] to take into account whether patients experienced issues that threatened their lives or the permanent impairment of a major bodily function during prior pregnancies.” This failure would “force” doctors to “let[] a patient deteriorate until one of [SB 174’s] narrow exceptions is met,” despite the knowledge of a preexisting pregnancy-related condition that “can progress or reoccur if abortion care is not available.” The brief asserted that a “pregnant patient’s risk of death associated with childbirth is approximately 14 times higher than any risk of death from an abortion.” (Citing Elizabeth G. Raymond & David A. Grimes, The Comparative Safety of Legal Induced Abortion and Childbirth in the United States , 119 O BSTETRICS & G YNECOLOGY 215, 216 (2012).) That amicus brief also detailed how SB 174 affects physicians. It opined that SB 174 encroaches on “widely accepted principles of medical ethics” by:
(1) substituting legislators’ opinions for a physician’s individualized patient-centered counseling and creating an inherent conflict of interest between *11 patients and medical professionals; (2) asking medical professionals to violate the age-old principles of beneficence and non-maleficence; and (3) requiring medical professionals to ignore the ethical principle of respect for patient autonomy. ¶30 The brief contended that “the patient-physician relationship is critical for the provision of safe and quality medical care.” (Citing A M . C OLL . OF O BSTETRICIANS & G YNECOLOGISTS , Legislative Interference with Patient Care, Medical Decisions, and the Patient-Physician Relationship (Aug. 2021).) It concluded that SB 174 undermines the patient-physician relationship, thereby undermining “the provision of safe and quality medical care,” by creating “inherent conflicts of interest.” It further asserted that SB 174 “forces physicians to choose between the ethical practice of medicine—counseling and acting in their patients’ best interest— and obeying the law.” (Citing A M . M ED . A SS ’ N , Opinion 1.1.3 – Patient Rights, in C ODE OF M EDICAL E THICS (2016).) PPAU provided the district court with an excerpt from a deposition of a Utah Department of Health and Human Services representative. The deponent testified that she could not recall a single abortion-related death in the State of Utah since she started working at the Department in 2001. The representative testified that in Utah, “between five and ten women a year . . . die as a complication of pregnancy” and that since 1990, “we’re actually seeing [] an increase in maternal mortality.” The State opted not to introduce any evidence of its own in response to PPAU’s. It instead challenged PPAU’s ability to bring suit. The State claimed that PPAU lacked standing because it has no “personal stake” in the dispute, that its only harm is economic in nature, and that it has no constitutional interest SB 174 implicates. As to the merits of PPAU’s underlying legal position, the
State argued that PPAU had not raised any serious issues on the merits and had no possibility of prevailing on its claims. According to the State, the sections of the Utah Constitution on which PPAU The State did provide the district court with evidence concerning the history of Utah’s abortion laws and the potential meaning of the Utah Constitution. See infra Part II.A.3.
rested its challenge neither expressly nor impliedly protect the right to choose to have an abortion. The State also contended that no historical evidence exists to support the proposition that the drafters of the Utah Constitution would have considered abortion a right that the constitution protects.
¶34 The State next claimed that PPAU could not show that it would suffer irreparable harm without an injunction because, according to the State, the only harm PPAU raises on its own behalf is a “loss of business.” The State further argued that PPAU should be precluded from supporting its application for an injunction with harm non-parties would allegedly suffer. The State did not avail itself of the opportunity to introduce evidence that spoke to the harms PPAU argued it, its staff, and its patients would face if SB 174 were enforced.
¶35 The State asserted that an injunction would impair the State’s “strong public interest in the enforcement of valid state statutes” and “the protection of human life, rooted in a moral conviction about the worth of each unborn child.” But it did not introduce evidence to support its assertions about SB 174’s ability to promote the legislation’s goals, nor did it address whether the harms PPAU claimed outweighed the harm to the State. The State contended that “the public interest demands that [SB 174] remain in force” while the court decided the case. The court granted PPAU’s motion and issued a
preliminary injunction enjoining the enforcement of SB 174 pending the final resolution of the case. The district court explained that PPAU had “demonstrated
an injury in its own right and to its patients” and that “enjoining the Act would redress those injuries.” It concluded that PPAU had standing “given its purpose and activities [in] providing reproductive healthcare to women.” The court also determined that PPAU “is an appropriate party to litigate this case of significant public import.” The district court concluded that there were serious issues
on the merits that should be the subject of further litigation as to whether SB 174 infringed: (1) a right to make decisions about one’s family free from government interference, (2) a right to equal protection, (3) a right to the uniform operation of laws, (4) a right to bodily integrity, (5) a right of conscience, and (6) a right to *13 privacy. The court made clear that it was “not deciding the merits of [PPAU’s] claims at this time,” but only that “this case raises novel and complicated issues, and [PPAU] may prevail on one or more of its claims.”
¶39 The court determined that PPAU had made a “strong showing that, without a preliminary injunction, [SB 174] will cause irreparable harm to [PPAU], its patients, and its staff.” It also found that the balance of harms weighs in PPAU’s favor, reasoning that while PPAU, its patients, and its staff “will suffer irreparable harm without a preliminary injunction, it is unclear on this record whether and to what extent [SB 174] will ultimately further its legislative goals.” And the court determined that the preliminary injunction would be in the public interest because it would “maintain the status quo” until the constitutional challenges are resolved. The State sought interlocutory review. After we granted
the State’s petition, the Legislature amended Utah Rule of Civil Procedure 65A’s preliminary injunction standard to eliminate the “serious issues on the merits” standard. After the amendment, a movant must demonstrate “a substantial likelihood that [it] will prevail on the merits” on at least one of its claims. See H.R.J. 2, 65th Leg., Gen. Sess. (Utah 2023). The amendment also allowed a party enjoined by a preliminary injunction on or before February 14, 2023, to “move the court to reconsider [under the modified test] whether the order or injunction should remain in effect.” Id. After that change, this court requested supplemental briefing on whether we should review the district court’s decision, which relied on the now outdated standard. In response, the State argued that a decision from this court may “materially affect final resolution of the case and serve the administration and interests of justice.” The State stated that it “will not ask the district court to reconsider the existing injunction in the wake of any decision from this Court.” In light of the supplemental briefing, we did not rescind the grant of interlocutory review.
ISSUES AND STANDARDS OF REVIEW The State raises two issues. It first argues that the district
court erred when it concluded that PPAU had standing to obtain a
preliminary injunction. We generally review challenges to standing
as a mixed question of fact and law because they involve “the
*14
application of a legal standard to a particularized set of facts.”
Hinkle v. Jacobsen
,
[or] balance competing
interests,
. . . those discretionary
determinations must rest upon sound legal principles.”
State v.
Boyden
,
ANALYSIS
I. PPAU HAS STANDING TO CHALLENGE SB 174’s
CONSTITUTIONALITY The State first contends that the district court erred
because PPAU lacks standing to challenge SB 174. The State argues
that standing “demands more than just a redressable injury.” It
posits that standing requires a party to show a “personal stake . . .
based on its own rights.” The State points to
Shelledy v. Lore
, where
we adopted the federal rule that generally, “a litigant ‘must assert
his own legal rights and interests, and cannot rest his claim to relief
on the legal rights or interests of third parties.’”
required that plaintiffs show standing as a threshold matter to
bring a case in court.”
Infra
¶ 231. But the case it cites for that
proposition,
Welsh v. Lambert
, does not speak about standing in the
same way the dissent does.
The “traditional” test for standing that we discuss in this opinion is a creature of United States Supreme Court jurisprudence
(continued . . .)
*16
Compare id.
¶ 19,
with Lujan v. Defs. of Wildlife
,
adopted the federal prudential requirement that a party generally
“must assert his own legal rights and interests.”
Shelledy
, 836 P.2d
at 789 (quoting
Warth
,
distinct and palpable injury that gives him a personal stake in the
outcome of the legal dispute.”
Jenkins v. Swan
,
be established through the alternative “public interest” standing
doctrine.
Gregory
, 2013 UT 18, ¶ 12. Because we conclude that
PPAU satisfies the traditional standing test, we offer no opinion on
whether it could have public interest standing. Nor do we need to
offer an opinion on whether PPAU could assert associational
standing.
See, e.g.
,
Utah Chapter of the Sierra Club v. Utah Air Quality
Bd.,
¶50 The district court concluded that PPAU established standing under the traditional test. The court explained that PPAU had demonstrated “an injury in its own right,” pointing to the “threat of criminal and licensing penalties, reputational harm, and harm to the[] livelihoods” of PPAU and its staff. It also concluded that “enjoining [SB 174] would redress those injuries.” The State nevertheless argues that traditional standing “demands more than just a redressable injury.” It posits that standing instead requires a party to show a “personal stake . . . based on its own rights.” This argument conflates traditional standing’s requirements with third-party standing’s prudential concerns. Traditional standing demands a redressable injury. And the State doesn’t really challenge PPAU’s ability to meet that threshold. Nor could it. PPAU meets each traditional standing
requirement. Enforcement of SB 174 subjects PPAU and its
physicians to the genuine threat of criminal prosecution and
licensing penalties if it provides the abortion care that SB 174
prohibits.
See
U TAH C ODE § 76-7a-201(4)–(6);
cf. Brown v. Div. of
Water Rts. of the Dep’t of Nat. Res.
, 2010 UT 14, ¶ 19,
explained that SB 174 prevents it from providing treatment to
patients, requires the cancellation of existing appointments, and
threatens licensing penalties for noncompliance.
Cf. Sierra Club
,
¶54 PPAU likewise demonstrated that it could meet the
causation and redressability prongs of the traditional standing test.
PPAU showed that the harm it will suffer, whether it is direct harm
such as criminal and licensing penalties, or indirect harm to
PPAU’s reputation or livelihood, both arise directly from SB 174.
See
TAH C ODE § 76-7a-201(3)–(4). Put differently, PPAU must
either comply with SB 174, “thereby incurring a direct economic
injury” or it may “disobey the statutory command and suffer . . .
sanctions and perhaps loss of license.”
Craig v. Boren
,
¶55 The State’s real beef with PPAU is that PPAU wants to argue that SB 174 violates its patients’ rights. And the State argues that our caselaw does not permit PPAU to do that. The State has something of a point, at least in as far as its
argument can be read to say that if PPAU wants to advance
arguments that might be more directly tied to its patients, it faces
additional hurdles. Typically, “a party who satisfies the traditional
test has standing and the court need not inquire further.”
Sierra
Club
, 2006 UT 74, ¶ 41. But when a plaintiff asserts the rights of
parties that are not before the court, it must also meet the separate
requirements of third-party standing.
Shelledy
,
patients’ claims because it fails to meet the third-party standing
requirements we discussed in
Shelledy
. The State contends that
third-party standing would only be appropriate if “it is
impossible
for the third-party right holders to assert their own claims.” (Citing
Shelledy
,
one may not claim standing . . . to vindicate the constitutional
rights of some third party.”
Barrows v. Jackson
, 346 U.S. 249, 255
(1953). But “[l]ike any general rule, . . . this one should not be
applied where its underlying justifications are absent.”
Singleton v.
*19
Wulff
, 428 U.S. 106, 114 (1976) (plurality opinion).
[8]
To establish
whether these justifications are present and “determine whether
the rule should apply in a particular case,” federal courts consider
“two factual elements.”
Id
. First, “the relationship of the litigant to
the person whose right he seeks to assert.”
Id.
Second, “the ability
of the third party to assert [their] own right.”
Id.
at 115–16.
[9]
In
Shelledy
, we looked to the federal standard to develop
our third-party standing doctrine. We restated the general rule
disfavoring third-party standing.
Shelledy
, 836 P.2d at 789 (citing
Warth
,
Though this section of
Singleton
represents a plurality, the
dissenting justices agreed that any deviation from the general rule
“must rest on specific factors outweighing the policies behind the
rule itself.”
Id.
at 124 (Powell, J., concurring in part and dissenting
in part). They also agreed with the plurality about the first
justification and only questioned whether the second justification
should receive “no more emphasis in this context.”
Id.
at 124 n.3.
The two-part test
Singleton
describes was originally supported
by only a plurality of the justices.
See id.
at 113–16;
id.
at 121–22
(Stevens, J., concurring in part);
id.
at 125 (Powell, J., concurring in
part and dissenting in part). It has since been adopted by a majority
and reiterated on several occasions.
See, e.g., Powers v. Ohio
, 499 U.S.
400, 410–11 (1991) (citing
Singleton
,
third-party rights must show “the presence of some substantial
relationship between the claimant and the third parties.”
Shelledy
,
836 P.2d at 789 (cleaned up). This requirement ensures that the
litigant “is fully, or very nearly, as effective a proponent of the right
as the [third party].”
See Singleton
,
professional relationship can meet this test.
See Griswold v.
Though the district court did not analyze whether PPAU had
third-party standing under
Shelledy
, the State raises
Shelledy
to
attack the district court’s decision. We may affirm on any legal
ground apparent on the record.
Bailey v. Bayles
,
a section of a constitutional law textbook discussing federal third-
party standing.
See Shelledy
,
Connecticut
,
relationship is patent” between a physician and a woman seeking
an abortion.
plaintiff serves as an advocate for the third party’s rights.
See
Eisenstadt v. Baird
,
the relationships in Griswold and Eisenstadt . See Griswold , 381 U.S. *22 at 481; Eisenstadt , 405 U.S. at 445. As Dr. Turok explained in his declaration: “PPAU’s mission is to empower Utahns of all ages to make informed choices about their sexual health and to ensure access for Utahns to affordable, quality sexual and reproductive health care and education.”
¶66 The amicus brief supporting PPAU’s position in the district court explained that “the core of this relationship is the ability to counsel frankly and confidentially about important issues.” (Citing A M . M ED . A SS ’ N , Opinion 1.1.1 – Patient-Physician Relationships, in C ODE OF M EDICAL E THICS (2016) (“The relationship between a patient and a physician is based on trust.”).) In addition, physicians have an “ethical responsibility to place patients’ welfare above the physician’s own self-interest or obligations to others.” (Citing id. )
¶67 Because of the relationship between PPAU and its
patients, PPAU finds itself well-positioned to litigate the
constitutionality of restrictions on its patients’ access to the services
PPAU provides. In other words, the interests of PPAU and its
patients are so intertwined that “there seems little loss in terms of
effective advocacy” from allowing PPAU to assert the rights of its
patients.
See Craig
,
the rightholders asserting their own constitutional rights.”
Shelledy
,
prong because “women affected by SB 174 have ‘never been precluded from asserting’ their own . . . rights.” (Quoting id. ) In essence, the State asserts—as does the dissent—that the “impossibility” requirement means that a plaintiff must show that third-party rightsholders had attempted and failed to, or would otherwise be prohibited from, asserting their rights. PPAU responds that “[impossibility] is less stringent than
the language implies, permitting third-party standing where practical barriers discourage suit by the rights-holder, even if suit is not technically impossible.” PPAU points to the note Shelledy cited, claiming that it “discusses [the impossibility] prong in the context of claims that may be difficult to bring.” (Citing Standing to Assert Constitutional Jus Tertii , supra ¶ 59, at 425.) We agree with *23 PPAU that the “impossibility” requirement in Shelledy does not require a plaintiff to show that a third party is absolutely prohibited from asserting its rights. The note Shelledy quoted cites three United States Supreme
Court cases to establish “impossibility” as a consideration for third-party standing, but none of the cases use the phrase The dissent claims that we are engaged in a strained interpretation of Shelledy . In the dissent’s view, we should apply a dictionary definition of “impossibility” and call our job complete. That might be an appropriate approach if we were interpreting a statute where separation of powers concerns counsel adherence to the words the Legislature voted into law. It might also be appropriate in a contract case, where our respect for parties’ ability to enter contracts would preach not looking behind the words the parties chose, absent an ambiguity in the contract’s language. But when we apply our own caselaw, stare decisis motivates our interpretive enterprise. We want to understand what we said before to promote predictability and stability in the law. And that is what we are doing here.
The dissent also claims that we are overruling
Shelledy
. That is
simply not so.
Shelledy
’s holding remains intact, and to the extent it
proffered a three-part test, we apply it. If it is our attempt to
understand how
Shelledy
should be interpreted that troubles the
dissent, we emphasize that refining tests when we apply them is
not a novel exercise. We have done this on numerous occasions
without anyone suggesting that we were trampling on
stare decisis
principles.
See, e.g.
,
Feasel v. Tracker Marine LLC
,
“impossibility.”
Standing to Assert Constitutional Jus Tertii
,
supra
¶ 59, at 425 n.16 (first citing
Eisenstadt
,
the assertion that third-party standing requires a showing that the third party is prohibited from asserting its rights. See Singleton , 428 U.S. at 117 (explaining that the “obstacles” need not be insurmountable, and the possibility to proceed anonymously or assemble a class to litigate does not prevent there from being a sufficient hindrance to a party’s assertion of their rights). In fact, the Singleton plurality relied on many of the same cases as the It appears that it is our decision to not read “ impossibility” to mean literal impossibility that most troubles the dissent. See infra ¶ ¶ 235–52.
When
Shelledy
analyzed the facts of that case, it did not use the
language of literal impossibility. It instead concluded that the third
party had not been “precluded” from asserting its rights.
Shelledy
,
If we were to read impossibility as strictly as the dissent advocates, it would be easier for a party without traditional standing to bring suit on behalf of the public at large than it would be for a party with traditional standing to assert the claims of a third party with whom it shares a close relationship.
Simply stated, our reading of Shelledy better comports with what Shelledy did, better aligns with the federal courts’ articulation of the test, and better harmonizes with our public-interest standing jurisprudence.
Harvard note for its conclusion that third-party standing only
requires that a third party face “some genuine obstacle” to assert
their rights.
Id.
at 116–17 (first citing
Patterson
,
may sufficiently hinder a woman’s assertion of her own rights. The
Court first explained that “she may be chilled . . . by a desire to
protect the very privacy of her decision from the publicity of a court
suit.”
three different patients, each of whom described the obstacles they face that hinder their ability to sue to protect their own rights. Jane Doe explained that she does not have the capacity or financial ability to bring a lawsuit, that she would want to preserve her anonymity, and that she feared “repercussions and judgments” if she were called to testify. Alex Roe asserted that she “would be very scared to be in court” and did not have the money or time to litigate. Roe also expressed a concern about preserving her Because the district court allowed for these declarations to be submitted under pseudonyms for anonymity, we refer to the declarants similarly.
anonymity. And Ann Moe claimed that challenging the law herself “would be pretty overwhelming” because of her full-time job and family obligations. Moe also pointed to the potential publicity and cost of litigation as barriers to bringing suit in her own name.
¶75 The State presented no contrary evidence to the district court. It instead asserted that some hypothetical Utahn could bring a claim instead of PPAU. And, on appeal, the State points to “the examples of women asserting abortion rights in court” as evidence that individual women should be the ones challenging SB 174. The State posits that standing is improper because women in Utah “could bring a constitutional challenge in their own name, form an association to do so, or join PPAU’s suit.” But the consideration is not whether the third party could possibly bring a challenge, but whether there is “some genuine obstacle” to the third party asserting its rights. Id. at 116.
¶76 The unchallenged declarations from PPAU’s patients establish that PPAU’s patients are sufficiently prevented from asserting their own rights because of the costs, desires to preserve anonymity, and concerns about appearing in court to present a polarizing challenge. Under Shelledy’s third prong, a party must show “the need
to avoid a dilution of third parties’ constitutional rights that would
result” if third-party standing were not permitted.
assert the rights of men under the age of 21. Id. at 195. The Court held that a vendor with traditional standing to challenge an act is entitled to assert the rights of third parties that “would be ‘diluted *27 or adversely affected’ should her constitutional challenge fail.” Id. (quoting Griswold , 381 U.S. at 481). It also explained that if the vendor lacked the ability to assert these rights, “the threatened imposition of governmental sanctions might deter [the vendor] from selling 3.2% beer to young males, thereby ensuring that enforcement of the challenged restriction against the vendor would result indirectly in the violation of third parties’ rights.” Id. (cleaned up).
¶80 As in Craig , SB 174 aims the penalties at the person performing the abortion, not the person seeking the abortion. See TAH C ODE § 76-7a-201. In essence, the enforcement of SB 174 against PPAU prevents abortions from being obtained, indirectly violating the asserted rights of PPAU’s patients. This is sufficient to establish that the rights of PPAU’s patients would be diluted if third-party standing were not permitted. PPAU satisfies the requirements to assert the
constitutional rights of its patients. The district court did not err when it concluded that PPAU has standing to assert the claims it pleaded.
II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION WHEN IT DETERMINED THAT PPAU SATISFIED RULE 65A’S
REQUIREMENTS FOR A PRELIMINARY INJUNCTION Under the standard in place when PPAU moved for a preliminary injunction, it needed to demonstrate that (1) “[t]here is a substantial likelihood that [it] will prevail on the merits of the underlying claim, or the case presents serious issues on the merits which should be the subject of further litigation”; (2) it “will suffer irreparable harm unless the order or injunction issues”; (3) “[t]he threatened injury to [it] outweighs whatever damage the proposed order or injunction may cause to the party restrained or enjoined”; and (4) “[t]he order or injunction, if issued, would not be adverse to the public interest.” U TAH R. C IV . P. 65A(e) (2014). The State argues that the district court abused its
discretion, because, in the State’s view, PPAU failed to establish any of the four elements for a preliminary injunction.
A. The District Court Correctly Determined that PPAU Presented Serious Issues on the Merits that Should Be the Subject of
Further Litigation The district court concluded that PPAU presented “at least
serious issues on the merits that should be the subject of further litigation.” It held that PPAU had demonstrated serious issues on the merits of six of its constitutional claims: (1) a right to bodily integrity, (2) a right to determine one’s own family composition, (3) a right to equal protection, (4) a right to uniform operation of laws, (5) a right of conscience, and (6) a right to privacy. [15] Before we begin our analysis of the State’s arguments, it is important to understand what rule 65A required of an applicant who sought to show that her case presents a serious issue on the merits which should be the subject of further litigation. Utah law does not define what a serious issue on the merits is in the context of a preliminary injunction. We adopted the serious issues standard in 1991. [16] Since then, we have generated little caselaw discussing Although the district court concluded that PPAU had raised serious issues with respect to six of its claims, it would have been sufficient for it to have found serious issues with respect to a single claim to support the grant of the injunction. For this reason, this opinion will not review the district court’s decision on all six claims. We offer no opinion, favorable or unfavorable, on any district court conclusion that we do not address, and our decision to not discuss any given claim should not be read to convey any significance. The pre-1991 version of rule 65A gave district courts broad
discretion to grant injunctions. Any of the following could be grounds for an injunction:
(1) when it appears by the pleadings on file that a
party is entitled to the relief demanded, and such
relief, or any part thereof, consists in restraining the
commission or continuance of some act complained
of, either for a limited period or perpetually;
(2) when it appears from the pleadings or by affidavit
that the commission or continuance of some act
during the litigation would produce great or
(continued . . .)
*29
what it means to show serious questions going to the merits.
Indeed, most, if not all, of our published decisions analyzed
whether there was a substantial likelihood that the applicant would
prevail on the merits of the underlying claim.
See, e.g.
,
Water
& Energy Sys. Tech., Inc. v. Keil
, 1999 UT 16, ¶ 8, 974 P.2d 821,
Aquagen Int’l, Inc. v. Calrae Tr.
,
irreparable injury to the party seeking injunctive relief;
(3) when it appears during the litigation that either party is doing or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party respecting the subject matter of the action, and tending to render the judgment ineffectual;
(4) in all other cases where an injunction would be proper in equity. TAH R. C IV . P. 65A(e) (1990). The advisory committee note to paragraph (e) of rule 65A
states: “The standards set forth in paragraph (e) are derived from
Tri–State Generation & Transmission Ass’n. v. Shoshone River Power
Inc
., 805 F.2d 351, 355 (10th Cir. 1986), and
Otero Savings & Loan
Ass'n. v. Fed. Rsrv. Bank of Kan. City
, 665 F.2d 275, 278 (10th Cir.
1981).” The State notes that the Tenth Circuit no longer
incorporates the serious issues element for its preliminary
injunction test because of
Winter v. Natural Resources Defense
Council, Inc.
,
(continued . . .)
*30
According to the Tenth Circuit, serious merits issues are
those that are so “substantial, difficult and doubtful, as to make
them a fair ground for litigation and thus for more deliberate
investigation.”
Otero Sav. & Loan Ass’n v. Fed. Rsrv. Bank of Kan. City
,
665 F.2d 275, 278 (10th Cir. 1981) (cleaned up). In other words,
serious merits issues are based on arguments that are “clearly not
frivolous” and “make the resolution of the final question of law a
genuinely debatable issue.”
Tri-State Generation & Transmission
Ass’n v. Shoshone River Power, Inc.
,
lenient serious issues standard, the district court erred in four ways
when it concluded that PPAU had raised serious issues on the
merits of its claims. The State first argues that PPAU cannot
invalidating any preliminary injunction standard that deviated
from the standard
Winter
restated, it repudiated the
Tri-State
Generation
test and its serious issues prong.
Diné Citizens Against
Ruining Our Env’t v. Jewell
, 839 F.3d 1276, 1282 (10th Cir. 2016).
However, the Tenth Circuit borrowed the serious issue element
from the Second Circuit, which continues to employ it despite
Winter
.
See Cont'l Oil Co. v. Frontier Ref. Co.
,
about some of the district court’s conclusions concerning certain
(continued . . .)
*31
prevail because the Utah Constitution does not expressly mention
a right to an abortion. The State next asserts that even if we have
recognized an unenumerated right that could reasonably be
understood to encompass a right to choose to have an abortion, our
constitution only enshrines specific unenumerated rights, not
broad ones. Third, the State claims that the district court erred
because a review of Utah history demonstrates that Utah law
criminalized abortion both before and after statehood and that this
history conclusively establishes that the people of Utah did not
intend to enshrine a standalone, implicit right to an abortion in
their constitution. The State buttresses that argument with the
United States Supreme Court’s discussion of the history of abortion
in
Dobbs v. Jackson Whole Women’s Health Organization
,
1. The Utah Constitution Recognizes and Protects Unenumerated Rights The State first contends that the district court’s serious
issues conclusion was erroneous because the Utah Constitution makes no mention of a right to an abortion. Although the State is correct that the constitution does not use the word abortion, that is not dispositive for multiple reasons. As we discuss more fully below, PPAU alleged that SB 174 “is unconstitutional because it forecloses abortion as the means by which individuals exercise substantive rights” that the Utah Constitution protects. That is, while the Utah Constitution does not explicitly enshrine a right to an abortion, PPAU alleges that restricting the ability to choose to have an abortion violates rights that the Utah Constitution does explicitly protect—such as the right to equal protection under the rights under the Utah Constitution. We address these specific arguments after we discuss the State’s larger, more general attacks on the district court’s decision. It bears noting that the State does not argue that the district
court erred by not analyzing whether, even if PPAU can demonstrate that SB 174 violates a right the Utah Constitution protects, SB 174 survives under the appropriate level of scrutiny. We offer no opinion on that question.
law. PPAU also alleges that SB 174 violates certain unenumerated rights, including the right to bodily autonomy and the right to make certain decisions related to one’s family. The Utah Constitution makes plain that not all rights it
protects are enumerated. See, e.g. , U TAH C ONST . art. I, § 25. Article I, section 25 expressly protects unenumerated rights, stating that “[t]his enumeration of rights shall not be construed to impair or deny others retained by the people.” We have characterized these retained rights as those that are “natural, intrinsic, or prior in the sense that our Constitutions presuppose them.” In re J.P. , 648 P.2d 1364, 1373 (Utah 1982) (cleaned up). We have also, at times, identified substantive rights that
our state constitution’s due process clause protects. Article I,
section 7 states, “No person shall be deprived of life, liberty, or
property, without due process of law.” Despite no express
reference to these rights in the constitutional text, we have
recognized substantive due process rights where state action has
foreclosed a right “so fundamental or important that it is protected
from extinguishment.”
In re Adoption of J.S.
,
promises but as essential guarantees of important liberties. On
several occasions, this court has recognized, analyzed, and
enforced rights that the Utah Constitution does not explicitly list.
In
Jensen ex rel. Jensen v. Cunningham
, for example, we stated that
“parents have a fundamental right to make decisions concerning
the care and control of their children.”
Utah Constitution makes no mention of a parent’s right to make decisions concerning the care of a child nor a parent’s right to make medical decisions concerning their child, we understood that these were rights that the Utah Constitution nonetheless recognizes and protects. Similarly, in State v. Murphy , we stated that there is a
“fundamental right to be left alone, a right to be allowed to succeed or fail, a right to ignore gratuitous advice, a right not to tell every problem to the social worker, and a right not to answer the door,” and that “[t]hese components of the right to privacy belong to, and are valued by, all people . . . .” 760 P.2d 280, 285 (Utah 1988) (cleaned up). That the Utah Constitution protects certain unenumerated
rights makes quick work of the State’s first argument. It isn’t The Murphy court did not assess whether the people of Utah at the time of framing would have understood these to be among the unenumerated rights that the Utah Constitution protects. Without opining on any of the specific rights Murphy identifies, we note that if we were to return to the sources we have mined to confirm the existence of unenumerated rights, we might uncover support for some of Murphy ’s assertions.
For example, John Locke wrote about personal liberty as, “so far as a man has power to think, or not to think, to move or not to move, according to the preference or direction of his own mind; so far a is free.” John Locke, An Essay Concerning Human man Understanding , bk. II, ch. 21, § 8 (Peter H. Nidditch ed., Oxford Univ. Press 1975) (1690). And, by the time of Utah’s statehood, the United States Supreme Court had opined “no right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Union Pac. Ry. Co. v. Botsford , 141 U.S. 250, 251 (1891). The Botsford court quoted Michigan Supreme Court Justice and legal scholar Thomas Cooley to assert that the “right to one’s person may be said to be a right of complete immunity; to be let alone.” Id. (cleaned up). As we discuss below, these are the types of sources to which we have looked to detect one of the unenumerated rights that article I, section 25 acknowledges. See infra Part II.A.2.
enough to say that because the Utah Constitution does not use the word abortion, it cannot contain a right that could be infringed by a restriction on the ability to seek an abortion. PPAU is entitled to try and demonstrate to the district court that SB 174 infringed an enumerated or an unenumerated right the Utah Constitution protects. The State also offers a variant of this argument and
contends that “nothing in the [constitutional convention] debates
on provisions PPAU relies on suggests they protected an implied
right to abortion.”
[22]
Although convention debates can provide
persuasive evidence about what the constitutional language meant
in 1895, the State has cited nothing for the proposition that article I,
section 25 only protects unenumerated rights that found their way
into a convention debate. And we are unaware of any case where
this court has taken that position. To the contrary, “our focus is on
the objective original public meaning of the text, not the intent of
those who wrote it.”
South Salt Lake City v. Maese
,
that the Utah Constitution does not enumerate, we have not always
detailed the analytical process we employed before we were
confident that we had properly identified an unenumerated right.
[23]
In re J.P.
is illustrative on this point.
See
unenumerated right that article I, section 25 references and when it is a due process right recognized under article I, section 7. *35 the State sought to terminate a mother’s parental rights under a statute that allowed the State to do so when it was in the child’s Id. at 1366. The mother challenged best interest. the constitutionality of the statute’s best interest standard under the federal and Utah constitutions. Id. The district court dismissed the State’s termination petition because it concluded that the statute violated the mother’s “substantive right to liberty, privacy, and family integrity as guaranteed by the Ninth and Fourteenth Amendments to the United States Constitution” and the due process guaranteed by the federal and Utah constitutions. Id. (cleaned up). The State appealed. We affirmed the district court,
concluding that “the Utah Constitution recognizes and protects the inherent and retained right of a parent to maintain parental ties to his or her child” under article I, sections 7 and 25. Id. at 1377. That is, notwithstanding that the Utah Constitution does not mention the right of a parent to maintain the parent-child relationship, we held that right to be both one of the unenumerated rights article I, section 25 refers to and one of the fundamental rights the state constitution’s due process clause protects. We began our analysis by noting that the Utah
Constitution instructs that “Frequent recurrence to fundamental
principles is essential to the security of individual rights and the
perpetuity of free government.”
In re J.P.
,
did not reference any discussion from the Utah Constitutional The Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Article I, section 25 of the Utah Constitution uses similar language, providing “This enumeration of rights shall not be construed to impair or deny others retained by the people.”
Convention to identify or define the rights it recognized. Rather,
we cited a few Utah cases, United States Supreme Court cases, and
sister state jurisprudence.
See id.
at 1372–74. The cases either
recognized the fundamental rights of parents that are protected by
due process, or the natural rights that parents enjoy. For example,
we cited
In re Walter B.
for the proposition that “[a] parent has a
fundamental right, protected by the Constitution, to sustain his
relationship with his child.”
[25]
Id.
(plurality opinion) (cleaned up)
(quoting
declaration in
Meyer v. Nebraska
that the “right of the individual . . .
to marry, establish a home and bring up children . . . [was] long
recognized at common law as essential to the orderly pursuit of
happiness by free men,” and thus, was one of the liberties so
fundamental it must be respected by due process.
Id.
(quoting 262
U.S. 390, 399 (1923)). In addition, we pointed to
Quilloin v. Walcott
,
in which the Court stated that it had “recognized on numerous
occasions that the relationship between parent and child is
constitutionally protected.”
[26]
Id.
(quoting
[25] The In re Walter B. court cited no authority and provided no analysis to explain how it reached this conclusion. In Quilloin , the Court followed this statement with citations to
Wisconsin v. Yoder
,
does more than presuppose the right to own property—it
specifically protects it. Article I, section 1 of the Utah Constitution
declares “[a]ll persons have the inherent and inalienable right . . .
to acquire, possess and protect property.”
*37
that the “freedom to marry has long been recognized as one of the
vital personal rights essential to the orderly pursuit of happiness
by free men.”
In re J.P.
,
freedom to marry “on so unsupportable a basis as . . . rac[e]” was
to directly subvert the “principle of equality at the heart of the
Fourteenth Amendment” and “surely to deprive all the State’s
citizens of liberty without due process of law.”
and retained rights of parents promotes values essential to the preservation of human freedom and dignity and to the perpetuation of our democratic society.” Id. at 1375–76 (emphases added). This was consistent with United States Supreme Court jurisprudence, summarizing inherent, natural, and retained parental rights as being protected by “the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment.” Id. at 1374 (cleaned up). In the end, we anchored In re J.P. ’s holding—that the Utah Constitution guaranteed parents a right to “maintain parental ties to his or her child”—in both article I, sections 7 and 25. Id. at 1377. As In re J.P. demonstrates, even when we take the time to
try and show our math, we have not definitively stated what a party needs to demonstrate for us to recognize an unenumerated right that either article I, section 7 or 25 protects. Nor have we always clearly delineated when the constitutional right we identify is a substantive due process right and when it is one of the unenumerated rights article I, section 25 acknowledges (or perhaps, when it is both). In re J.P. nevertheless provides an example of how a party
should approach the task of identifying an unenumerated right. In re J.P. relied on, among other things, several United States Supreme Court and sister state cases referencing a right (or similar rights), passages from Blackstone and Kent, and a 1909 treatise. See generally id. at 1374–77. In re J.P. found that sufficiently persuasive. When digging into these commentaries, one finds Blackstone reporting that at common law, only a father had the power to “correct” his child in a reasonable manner, to consent to marriage if the child was underage, and to assign his parental powers to a guardian or a schoolmaster. 1 W ILLIAM B LACKSTONE , C OMMENTARIES *452–53. In his commentaries on American law, Kent described parents enjoying similar rights over their children. 2 J AMES K ENT , C OMMENTARIES *218–25. The 1909 treatise noted that “The right of the father is generally held to be a paramount right, if he is a fit person.” W ALTER C. T IFFANY , T HE L AW OF P ERSONS AND D OMESTIC R ELATIONS 268–70 (2d ed. 1909).
¶109 It is important to note that we decided In re J.P. before we began to emphasize that we would interpret the Utah Constitution by focusing on its original public meaning. This emphasis helps define the inquiry In re J.P. exemplifies. We ask parties to look to history and tradition as part of the inquiry into what statehood-era Utahns would have understood the constitution’s text to mean. From that original meaning, we can identify the constitutionally protected principle. That is, an inquiry into history and tradition is not an end in itself; it is a means to discover what the constitutional language meant to Utahns when it entered the constitution. Simply stated, we have on many occasions recognized and analyzed rights that article I, section 25 references. Were we to accept the contention that the Utah Constitution only protects the rights it enumerates, we would read article I, section 25 out of the constitution and eliminate an important protection the people of Utah saw fit to emphasize in their founding document. This we cannot do. Even if we have not always been clear about where we look to find the unenumerated rights the Utah Constitution protects, and even if we have sometimes been imprecise about what a party must show to convince us that a right exists, we have never deviated from our recognition that the Utah Constitution protects certain rights that the text does not explicitly describe.
2. The Utah Constitution Protects Rights As They Were Understood at the Time They Were Enshrined in the Constitution The State next argues that even if PPAU were to identify
some unenumerated right that SB 174 might infringe, the constitution only guarantees specific, narrowly defined rights. When the court questioned the State about a right to bodily integrity, for example, the State replied that there is “not the history to support . . . applying that right the way the plaintiff has asked for in this case.” Oral Argument at 00:14:20–14:24, Planned Parenthood Ass’n of Utah v. Utah , No. 20220696 (Aug. 8, 2023), https://www.youtube.com/watch?v=qBwWPt1ITUk. Essentially, while the State acknowledges the Utah Constitution may protect certain unenumerated rights, like a right to bodily integrity, it also argues that PPAU cannot generalize this right to protect a choice to seek an abortion. We rejected a similar argument in In re Adoption of K.T.B. ,
2020 UT 51, 472 P.3d 843. There, a birth mother unsuccessfully *40 attempted to intervene in the adoption of her child. Id. ¶ 2. The mother challenged Utah’s Adoption Act, arguing that it violated her substantive due process rights. Id. ¶¶ 1–3. We concluded that because a mother’s parental rights are “vested” and “inherent,” they are fundamental, and thus, a mere “failure to comply with any state-prescribed procedure” cannot result in the termination of parental rights. Id. ¶ 37 (cleaned up). We noted that parental rights are “among those rights
referred to in Article I, [section] 25 of the Utah Constitution and the Ninth Amendment of the United States Constitution as being retained by the people,” so only a “showing of unfitness, abandonment, or substantial neglect” can justify termination of parental rights. Id. (quoting In re J.P. , 648 P.2d 1364, 1375 (Utah 1982)). We concluded that the birth mother’s substantive due process rights had been violated. Id. ¶ 51. We reached that conclusion over a dissent that resembles
the argument the State advances here. The
In re K.T.B.
dissent
argued that parties needed to make “a
specific showing
that the
precise interest
asserted by the parent is one that is deeply rooted in
this Nation’s history and tradition and in the history and culture of
Western civilization.”
Id.
¶ 131 (Lee, A.C.J, dissenting) (citing
In re
J.S.
,
constitutional inquiry asks whether specific “conduct falls within
the umbrella of protected [] rights,” not “whether [people] have a
recognized right to be free of a particular form of governmental
interference” with that right.
Id.
¶ 63 (emphasis omitted).
To be sure,
In re K.T.B.
recognized that “the level of generality
at which an asserted right is framed may be an outcome-
determinative issue in some cases.”
¶116 The relevant question is not, as the State frames it,
whether we define constitutional rights broadly or narrowly.
Rather, the proper inquiry focuses on how the people of Utah at the
time of statehood would have understood the right that the
constitution protects.
See Neese v. Utah Bd. of Pardons & Parole
, 2017
UT 89, ¶¶ 96, 100,
Cunningham
that “parents have a fundamental right to make
decisions concerning the care and control of their children,” we
noted how “this general right necessarily encompasses the more
specific right to make decisions regarding the child’s medical care.”
constitutional principle as it was understood by those who voted our constitution into existence. That understanding will govern the breadth of the principle. PPAU is entitled to attempt to identify the rights that the people of Utah at the time of framing would have understood that the constitution protected and to argue that SB 174 impermissibly infringes upon those rights. The district court correctly proceeded to analyze whether PPAU had presented arguments on those claims that raised the serious issues needed to sustain an injunction. *42 U
3. Utah’s History of Criminalizing Abortion Has Evidentiary Weight but Does Not Automatically Discredit the District Court’s Conclusion that PPAU Raises Serious Issues on the Merits of its Claims
¶120 The State’s next argument focuses on Utah’s history of criminalizing abortion. The State argues that because abortion had been illegal prior to statehood and was criminalized until Roe v. Wade , 410 U.S. 113 (1973), the constitution could not possibly enshrine any right that an abortion restriction would infringe.
¶121 The State begins its historical recitation with laws from the Utah Territory. It notes that the Utah Territory forbade providing, supplying, or administering the means to cause the “miscarriage” of a pregnant woman, except when a miscarriage was necessary to preserve the woman’s life. (Quoting U TAH C OMPILED L AWS § 21-3-1972 (1876).) Turning to the 1898 Utah Code, the State maintains that
there is significance to the fact that when the territorial “miscarriage” law was recodified into the first state code, it was housed in a chapter entitled “Abortion.” (Citing U TAH R EV . S TAT . § 75-27-4226 to -4227 (1898).) The following decade, the Legislature declared it
unprofessional conduct for a doctor to “offer[] or attempt[] to procure or aid or abet in procuring a criminal abortion.” (Quoting TAH C OMPILED L AWS § 63-1736(1) to-(2) (1907).) The State argues that it is meaningful that while we upheld criminal convictions of people charged with violating abortion laws and medical license revocations for performing abortions, no adverse party ever challenged the constitutionality of the abortion laws. The State contends that the “lack of any [constitutional] challenges by litigants or rulings by this Court further confirm the general public at the time of the founding did not understand the Utah Constitution to protect an implied right to abortion.” The State also looks outside Utah for historical evidence to support the proposition that past criminalization of abortion practices mandates a conclusion that SB 174 is constitutional. The State quotes Dobbs v. Jackson Women’s Health Organization and claims that “[a]t common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages.” (Quoting 597 U.S. *43 215, 241 (2022).) The State relies on Dobbs ’s observation that by the time the Fourteenth Amendment was ratified, twenty-eight out of thirty-seven states criminalized pre-quickening abortions, as did all thirteen territories that would later become states, including Utah. (Quoting id. at 248–50, app. B.) And the State relies on Dobbs ’s statement that the motivation for abortion bans in the 1800s and 1900s was “a sincere belief that abortion kills a human being.” (Quoting id. at 254.) The State uses this history to argue that Utah’s territorial
laws, the 1898 Code, and law from other states at the time of statehood demonstrate that the Utahns who ratified the constitution in 1895 understood the constitution to contain no rights that SB 174 infringes upon. Although we understand the State’s argument and recognize that it raises relevant considerations, its proffered history does not negate the district court’s conclusion that there are serious issues going to the merits.
a. The Utah Constitution Enshrines Principles, Not Application of Those Principles To begin, the “Utah Constitution enshrines principles, not
application of those principles.”
South Salt Lake City v. Maese
, 2019
UT 58, ¶ 70 n.23,
laws in place at the time of statehood means that the Utah
Constitution cannot protect any rights that SB 174 might infringe.
But this potentially conflates applications of constitutional
Quickening is when the mother can first feel the movement of
the fetus, “usually somewhat before the middle of the period of
gestation.”
Quickening
, M ERRIAM - W EBSTER ’ S , https://www.merri
am-webster.com/medical/quickening (last visited July 19, 2024).
*44
principles with the principles themselves.
[33]
Our interpretive task is
to determine what principles the people of Utah enshrined in the
constitution.
[34]
And once we determine those principles, it is our
We have at times been guilty of the same mistake.
American
Bush v. City of South Salt Lake
provides an example of this. 2006 UT
40,
The
American Bush
court’s misstep is perhaps understandable
because we decided that case more than a decade before we fully
articulated the importance of distinguishing between principles
and application of those principles.
See, e.g.
,
Maese,
language meant at the time it entered the constitution because that language is imbued with magic. We seek to understand the original
(continued . . .) *45 duty to apply them to the cases before us. This is more than an academic exercise. Failure to distinguish between principles and application of those principles would hold constitutional protections hostage to the prejudices of the 1890s. For example, if we failed to distinguish between
principles and applications, a party could use Utah’s history to argue that the Utah Constitution provides no protection for interracial marriage. The Utah Territory outlawed interracial marriage in 1888. 2 U TAH C OMPILED L AWS § 5-5-2584(5) to (6) (1888) (declaring marriage void between a white person and a person of African or Asian descent). We did not see a published case challenging the prohibition’s constitutionality until 1961, and even then, we did not analyze the statute’s constitutionality. Thomas v. Children’s Aid Soc’y of Ogden , 364 P.2d 1029, 1032 (Utah 1961), overruled on other grounds by Wells v. Children’s Aid Soc’y of Utah , 681 P.2d 199 (Utah 1984). In 1963, the Legislature repealed the ban. See 1963 U TAH
L AWS 162–63. Even among the repeal’s supporters, there was
division over whether the ban was constitutional. Some supporters
advocated repeal because interracial couples were marrying
outside Utah and then returning to the state. Thus, even in repeal,
some legislators appeared to be motivated by the desire to avoid
public meaning because it is the best place to start to understand
the principle the people of Utah placed in the constitution.”
State v.
Barnett
,
marriage laws, refusing to issue marriage licenses to interracial couples at least through the 1930s. See, e.g. , Marriage License Refused – Chinaman and a Woman of Mixed Blood Asked for It , S ALT L AKE T RIB ., Sept. 16, 1898, at 6; The License Was Refused – Colored Soldier’s Attempt to Marry a Supposed White Woman , D ESERET E VENING N EWS , Oct. 26, 1899, at 4; Couple Fight Snow-Blocked Passes to Wed in Utah, but Are Denied License , S ALT L AKE T ELEGRAM , Jan. 17, 1931 at 2 (reporting that after consultation with the deputy county attorney, the county clerk denied a marriage license to a Filipino man and an “American” woman). A demonstrated commitment to enforcing unconstitutional laws does not render them constitutional. *46 U litigation and not by constitutional concerns. See Anthony Michael Kreis, Marriage Demosprudence , 2016 U. I LL . L. R EV . 1679, 1705 (2016). Consequently, many Utahns at the time of statehood— and for a long time thereafter—would have opined that article I, section 24, which promises that “[a]ll laws of a general nature shall have uniform operation,” provided no protection for interracial marriage. And someone could point to that understanding and the miscegenation laws on the books at the time of statehood, and for decades thereafter, as proof that the Utah Constitution does not guarantee equality in a way that protects every Utahn’s right to marry a person of a different race. If we were to accept that approach to originalist inquiry, that could end the analysis. But we don’t and it doesn’t. That is because we look to understand the principle
embedded in the constitution and not how the people of Utah who put it in the constitution would have applied that principle. With respect to interracial marriage, the analysis is simple because article I, section 24 of the Utah Constitution plainly asserts the principle that laws of a general nature apply equally, and we have no reason to believe that the people of Utah understood that general principle any differently at the time of statehood. But we are not required to apply that principle in the same way the founding generation would have. Stated simply, while the laws that existed at the time of
statehood may be evidence of the constitution’s meaning, they do not end the analysis. Moreover, “even the first Legislature could have enacted an
unconstitutional law.”
See Maese
,
b. The State’s Historical Evidence May Not Fully Define the
Principles the Utah Constitution Contains
¶133 The State’s historical recitation is not dispositive for
another reason: it may not give us a complete understanding of
Utah’s unique history and traditions. “When we look to the
historical record, we hope that it resembles a Norman Rockwell
painting—a poignant, straightforward, and easy to interpret
representation.”
Maese,
¶134 We want parties to present a complete view of the
historical record to help us avoid the “pattern of asserting one,
likely true, fact about Utah history and letting the historical
analysis flow from that single fact.”
State v. Tulley,
banned abortion at the time we became a state. To uncover the constitutional principle that the criminalization of abortion might speak to, we need to understand why Utah banned abortion at the time of statehood and what that can tell us about how the Utahns who voted the constitution into existence understood the relationship between them and their government. When this comes into view, we can then use the history to help define the principles the Utah Constitution contains. The evidence the State put before the district court tells us
something about what the people may have understood at the time of statehood, but it may not tell us everything. The State asserts that the 1898 Utah Code prohibited a
person from “provid[ing], suppl[ying], or administer[ing] to any
pregnant woman . . . any medicine, drug, or substance, or uses or
employs any instrument or other means whatever, with intent
thereby to procure the miscarriage of such woman” unless it was
necessary to save her life. (Quoting U TAH R EV . S TAT . § 75-27-4226
(1898).) The State also asserts that the code criminalized women
*48
intentionally producing their own miscarriage. (Citing
id.
§ 75-27-
4227.) The State argues that in the founding era, miscarriage was
“generally used and understood in common language” as
“substantially the same” thing as abortion. It uses this court’s
decision in
State v. Crook
to support that contention and to define
those terms.
abortion.” Id. at 1092. The statute Crook was charged with violating was found under the title “Abortions” but used the following language:
Every person who provides, supplies or administers to any pregnant woman, or procures any such woman to take any medicine, drug or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman , unless the same is necessary to preserve her life, is punishable.
Id. at 1093 (emphasis added) (citing U TAH C OMPILED L AWS § 6-2- 5046 (1888)). We noted that article VI, section 23 of the Utah Constitution requires that a law’s title clearly reflect its substance. Id. To determine whether Crook had been unconstitutionally charged, we resorted to Webster’s dictionary definition of abortion. Id. Webster’s defined abortion as “the act of giving premature birth; particularly the expulsion of the human foetus prematurely, or before it is capable of sustaining life; miscarriage.” Id. We proclaimed that “[a]s generally used and understood in common language, the ‘procuring of an abortion’ means substantially the same as ‘procuring a miscarriage’. . . . but [that] the criminal act of destroying the foetus at any time before birth is usually termed in law procuring a miscarriage.” Id. The State uses Crook ’s discussion to argue that near the
time of statehood, Utahns would have understood that abortion and miscarriage were synonymous terms and that a miscarriage meant the expulsion of a fetus at any time before birth. Although Section 23, as it existed in Utah’s first constitution, is now found in article VI, section 22, which in part requires that “no bill shall be passed containing more than one subject, which shall be clearly expressed in its title.”
the State does not explicitly argue the import of what we said in Crook , presumably the State highlights this discussion to blunt any argument that Utahns in 1895 would have drawn a distinction between pre- and post-quickening abortions. And the State appears to use this evidence to argue that criminalization of abortion at statehood means that the Utah Constitution could not contain any right that could be infringed by a restriction on a pre-quickening abortion. There is a potential issue with using this sliver of history
as definitive proof of what Utahns understood at the time of statehood. Crook does not explain why we looked to Webster’s and not another dictionary to define abortion. This is important because if we had looked to the 1895 version of the Century Dictionary, for example, we would have seen that it defined abortion as:
1. Miscarriage; the expulsion of the fetus before it is viable—that is, in women, before about the 28th week of gestation. Expulsion of the fetus occurring later than this, but before the normal time, is called (when not procured by art, as by a surgical operation) premature labor. A somewhat useless distinction has been sometimes drawn between abortion and miscarriage, by which the former is made to refer to the first four months of pregnancy and the latter to the following three months. Criminal abortion is premeditated or intentional abortion procured, at any period of pregnancy, by artificial means, and solely for the purpose of preventing the birth of a living child; feticide. At common law the criminality depended on the abortion being caused after quickening. Some modern statutes provide otherwise.
Abortion , T HE C ENTURY D ICTIONARY : A N E NCYCLOPEDIC L EXICON OF THE E NGLISH L ANGUAGE 16 (William D. Whitney & Benjamin E. Smith, eds. 1895), https://archive.org/details/centurydict01whit /page/16/mode/2up (cleaned up) (emphasis added). A Utahn whose understanding mirrored the common law understanding the Century Dictionary describes would not have necessarily *50 believed that the Utah law outlawing abortion banned any action to end a pregnancy at any time during the pregnancy. We take the State’s point that Crook considered abortion to “mean[] substantially the same” as miscarriage. But Crook is a single data point that may not have reflected the common understanding of the time. In other words, there are questions about whether statehood-era Utahns understood that it was criminal to intentionally terminate a pregnancy from the moment of conception, as opposed to being criminal only after quickening. Indeed, some historical sources point to a different conclusion than the one the State reaches. For example, Hannah Sorensen, a female physician who practiced in Utah in the 1890s, authored a book that recounts that some Utah women did not consider abortion at all stages of pregnancy to be wrongful. Sorensen offered lectures and classes on female health. Part of Sorensen’s instruction discouraged the idea that it was acceptable to have an abortion before quickening. See Amanda Hendrix- Komoto, The Other Crime: Abortion and Contraception in Nineteenth- and Twentieth-Century Utah , D IALOGUE : J. M ORMON T HOUGHT , Spring 2020, at 33, 40. Based on her interactions with Utah women, Sorensen wrote that it “is considered by some no sin to destroy the foetus in the early months,” and that others “believe[d] it a sin to destroy offspring in the first months of pregnancy; but not sin to use means whereby to prevent conception, and they take that course.” H ANNAH S ORENSEN , W HAT Though it is unclear how much stock Utahns put in this, or any, dictionary, at least a few Utahns were aware of its existence. In the 1890s, the Salt Lake Herald-Republican and the Ogden Daily Standard mentioned the Century Dictionary. Local News , S ALT L AKE H ERALD -R EPUBLICAN , Nov. 22, 1896, at 4; Three Long Words , O GDEN D AILY S TANDARD May 14, 1892, at 3. Moreover, United States Supreme Court justices of the 1890s era cited the Century Dictionary in twelve opinions. See generally Samuel Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries , 47 B UFF . L. R EV . 227, 263 & app. A (1999). Also of note, Justice Scalia has stated that the Century Dictionary is one of the four most useful and authoritative dictionaries for the era. A NTONIN S CALIA & B RYAN A. G ARNER , R EADING L AW : T HE I NTERPRETATION OF L EGAL T EXTS 422 app. (2012). *51 W OMEN S HOULD K NOW 81 (1896), available at https://babel.hathitrust.org/cgi/pt?id=uc2.ark%3A%2F13960%2 Ft4vh5gw7j&.
¶143 What Sorensen described—some Utah women seemingly
believing that termination of a pregnancy before quickening was
not wrongful—appears to have been a line that residents of other
states drew as well.
See State v. Murphy
,
State proffers as definitive may not have been commonly shared. Some, like Sorensen, believed the intentional abortion of a fetus always to be criminal; others believed intentional abortion to be criminal after quickening. In addition, the State’s evidence does not necessarily
demonstrate that abortion was illegal at statehood because Utahns understood that a woman lacked the legal ability to decide whether to carry a pregnancy to full term. There is evidence suggesting that concern for the life of the mother motivated, at least in part, abortion bans. See, e.g. , Tracy A. Thomas, Misappropriating Women’s History in the Law and Politics of Abortion , 36 S EATTLE U. L. R EV . 1, 21 (2012). Tracy Thomas writes that “early legislation” (taking place around 1841) “continued to focus on medical malpractice and protection of the life and health of the mother from the consequences of abortion.” Id. This is consistent with the Supreme Court of New Jersey’s
discussion of its 1858 abortion law, stating that “[t]he design of the
statute was not to prevent the procuring of abortions, so much as
*52
to guard the health and life of the mother against the consequences
of such attempts.”
Murphy
,
ban is informative. In 1821, Connecticut outlawed “wil[l]fully and maliciously, administer[ing] to . . . any person or persons, any deadly poison, or other noxious and destructive substance, with an intention . . . to cause or procure the miscarriage of any woman, then being quick with child . . . .” M OHR , supra ¶ 143, at 21 (citing 22 C ONN . P UB . S TAT . § 14 (1821)). Mohr notes that Connecticut did not outlaw abortion per se, but instead outlawed one specific abortion method because it was “prohibitively unsafe owing to the threat of death by poisoning,” and that surgical abortions remained legal. Id. at 22. Some scholars also suggest that the push for anti-abortion
laws that determined fetal life started from conception was a way to standardize the medical profession. Thomas writes: “The lobbying effort to criminalize abortion was spearheaded by the medical profession.” Thomas, supra ¶ 145, at 21. Doctors “claim[ed] pregnancy as an area solely for medical expertise. . . . Quickening, the physicians argued, could not be relied upon as an indicator of fetal life because it did not occur at a standard moment.” Id. at 21– 22. Reva Siegel writes that “[d]uring the period of the criminalization campaign, the gynecologists and obstetricians of the AMA [American Medical Association] were seeking to appropriate management of the birthing process from midwives, and to prevent women from entering the medical profession.” Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection , 44 S TAN . L. R EV . 261, 300 A few newspaper articles from Utah in the 1890s reference abortion and the doctors implicated as being charged with medical malpractice. See Local and Other Matters , D ESERET W EEKLY , July 21, 1894, at 16 (reporting that a jury considering “premature birth” charges found that the fetal death “was the result of criminal malpractice”); An Embryo Sensation – Charges Made Against A Doctor and Patient – Coroner Investigating a Case of Premature Birth—Grand Jury’s Attention May Be Called to It , S ALT L AKE T RIB ., Sept. 27, 1895, at 5 (coroner noting that “it is with extreme difficulty that indictments under the laws relating to malpractice have been sustained”).
(1992). The period Thomas and Siegel examine—the 1850s to the 1880s—parallels the founding of the Utah Territory and its development toward statehood. See Thomas, supra ¶ 145, at 21; Siegel, supra at 286 (discussing the AMA’s 1859 resolution “condemning abortion as an unwarranted destruction of human life” and the AMA’s 1860s campaign to save “the nation from the evils of abortion” (cleaned up)).
¶149 To be sure, at this juncture, we do not have a full picture
of what conduct statehood-era Utahns prohibited when they put
abortion laws on the books. Nor do we fully understand the
“presuppositions and silent logical connectives” that influenced
why they enacted these laws.
See Neese v. Utah Bd. of Pardons
& Parole
,
¶150 If we are to ultimately use the criminal statutes the State relies on to help interpret the constitution, we need to understand what conduct they criminalized and the motivation for enacting the laws. This is the evidence that will inform what the understanding was and whether that influenced the protections the people of Utah placed into the constitution. And it is this evidence that will allow a court to interpret the constitution consistent with the principles that those who enacted it intended it to contain. For the purpose of reviewing the district court’s
conclusions under the preliminary injunction standard, it is enough to recognize that the laws at the time of statehood do not necessarily provide the full portrait of what the people of Utah understood when they approved the Utah Constitution. Nor does it tell us how that understanding informs the protections the Utah Constitution contains. The district court did not err when it concluded that serious issues that merit further examination exist.
c. The State’s Historical Evidence from Outside Utah Is Not Dispositive The State posits that we should defer to the United States
Supreme Court’s statements about abortion recited in Dobbs. While Dobbs ’s historical discussion may have persuasive force, it does not end the inquiry. The focus of Dobbs’ s inquiry differs from what PPAU’s
challenge presents. The
Dobbs
court analyzed the nation’s history
and tradition regarding abortion, focusing primarily on the
nation’s laws in 1868, the year the Fourteenth Amendment was
*54
U ratified.
Dobbs v. Jackson Women’s Health Org.
,
¶154 Dobbs ’s historical recitation does not directly speak to Utahns’ understanding of the Utah Constitution. Nor does Dobbs consider the unique circumstances of Utah’s founding and the possibility that those who fled to what became Utah may have carried with them understandings about government overreach into one’s personal decisions that influenced what Utahns at the time of statehood thought their state constitution should protect. See generally John J. Flynn, Federalism and Viable State Government: The History of Utah’s Constitution , 1966 TAH L. R EV . 311 (1966). Nor does Dobbs consider the Utah-specific evidence, a portion of which we discuss above. The upshot is that while the history Dobbs recites is
something that the parties can advance to help interpret the Utah Constitution, it may not tell us all we need to know to understand what our state constitution means. Although this disposes of the State’s primary criticisms of
the district court’s order, the State also takes issue with other conclusions the court made about the Utah Constitution and the rights it protects. We address these next.
4. The District Court Did Not Err When It Concluded that Serious Issues Exist Regarding SB 174’s Alleged Infringements on a Right to Bodily Integrity Before the district court, PPAU argued that SB 174
violated “the fundamental right of pregnant Utahns to bodily integrity.” PPAU argued this right can be found in article I, sections 1, 7, 11, and 14 of the Utah Constitution. Section 1 declares, among other things, that “[a]ll persons have the inherent and inalienable right to enjoy and defend their lives and liberties.” Section 7 provides “No person shall be deprived of life, liberty, or property, without due process of law.” Section 11—known as the Open Courts Clause—states that “[a]ll courts shall be open, and every person, for an injury done to the person in his or her person . . . shall have remedy by due course of law.” And section 14 prohibits unreasonable searches.
¶158 PPAU contended that because SB 174 “forc[es] someone
to remain pregnant against their will,” it offends a right to bodily
integrity. It argued that SB 174 exposes pregnant people to
“increased physical risk, including an increased risk of death, and
more invasive medical interventions such as delivery by C-
section.” PPAU claimed that “the right to bodily integrity
undoubtedly protects one’s ability to be free from nonconsensual
‘harmful or offensive contact.’” (Quoting
Wagner v. State
, 2005 UT
54, ¶ 51, 122 P.3d 599.) It also asserted that the right to bodily
integrity “underpins the common-law doctrine of informed
consent in medical decision making” that Utah has recognized.
(Citing
Nixdorf v. Hicken
,
have disapproved of reading into the Utah due process clause “any
rights ‘not mentioned in the Constitution’ where they were
‘unknown at common law’ and not ‘deeply rooted in th[is]
[N]ation’s history and tradition.’” (Quoting
In re J.P.
,
contemplates some protection for decisions regarding one’s own
body.
See, e.g.
,
Jensen ex rel. Jensen v. Cunningham
,
parents who refused to allow their 13-year-old son to receive chemotherapy after he was diagnosed with a cancerous tumor expected to be fatal if left untreated. 2011 UT 17, ¶¶ 7–9, 31. The Jensens resisted court orders for their son to undergo chemotherapy and fled Utah with their son. Id. ¶¶ 24–30. The State charged the Jensens with custodial interference and kidnapping. Id. ¶ 28. The Jensens eventually entered into a plea agreement, and the State ended its pursuit to force the Jensens’ son to undergo chemotherapy. Id. ¶ 31. The Jensens sued the State and various other parties for violating their rights under the federal and Utah constitutions—specifically relevant here, their rights under article I, sections 1, 7, 14, and 25 of the Utah Constitution. Id. ¶ 32. The Jensens claimed that “article I, sections 1 and 7 vest in parents a right to direct their child’s medical care free from governmental interference” unless the government action can survive strict scrutiny. Id. ¶ 70. When plaintiffs seek money damages for constitutional violations, they must show several elements, including that they suffered a “flagrant violation” of their constitutional rights. Id. ¶ 65. The Jensens lost their case because they failed to show that they suffered “flagrant violations” of their constitutional rights. See id. ¶¶ 86, 89, 94, 97. But to reach that conclusion, we noted the well-
established precedent recognizing “parental rights as a
fundamental component of liberty protected by article I, section 7.”
Id.
¶ 72. We quoted our statement from
In re J.P.
that a parent’s
inherent right to raise his or her children is a “fundamental axiom[]
of Anglo-American culture, presupposed by all our social, political,
and legal institutions.”
Id.
(quoting
embrace a broader, more encompassing fundamental right to direct medical care.” Id. ¶ 73. We also acknowledged that “the Jensens [had] not cited to any other authority—from this or any other jurisdiction—that squarely supports such an expansive reading of article I, section 7 [of the Utah Constitution].” Id. We nevertheless concluded that “it is clear from our precedent that parents have a fundamental right to make decisions concerning the care and control of their children. And this general right necessarily encompasses the more specific right to make decisions regarding the child’s medical care.” Id.
¶165 Partially because parents “have long viewed their offspring as somehow being an extension of themselves,” at their core, In re J.P. and Jensen recognize that the Utah Constitution protects a fundamental right to make those decisions for a child that parents can make for themselves. In re J.P. , 648 P.2d at 1376 (cleaned up). And a fundamental right to make medical decisions about a child presupposes a fundamental right to make medical decisions about oneself. There are three lessons to take from Jensen relevant to the
State’s argument.
Jensen
first reinforces the conclusion that we
sometimes define constitutional rights as broad principles that
“necessarily encompass[] the more specific right.”
integrity claim. Although we did so in the context of interpreting
the federal constitution, we also discussed the constitutional
dimensions of the ability to make one’s own medical decisions in
In re Boyer
,
statute “impinge[d] on fundamental rights” under the federal due process clause. Id. at 1087–88. We concluded that the incapacity statute was not vague and overbroad because it accomplished the statute’s basic purpose “without improperly impinging on an individual’s liberties of self-determination, right of privacy, right to travel, or right to make one’s own educational and medical The parties do not dispute that the decision to have an abortion can be characterized as a medical decision. The American College of Obstetricians and Gynecologists’ amicus brief describes a woman’s decision to have an abortion as a medical one she makes with the advice of a doctor.
decisions.” Id. at 1089. Although we did not undertake an analysis of the Utah Constitution to resolve In re Boyer , our recognition of an individual’s fundamental right under the federal constitution to make one’s own medical decisions raises serious issues about whether the similarly worded provision of the Utah Constitution also protects this right. PPAU also points to Nixdorf v. Hicken as a case that
recognizes a right to bodily integrity.
Nixdorf
was a medical
malpractice case where a surgeon left a suturing needle inside the
patient, was aware of the mistake, and failed to inform the patient.
to reach its conclusion.
Id.
at 354 n.19. In
Schloendorff v. Society of
N.Y. Hospital
, a volunteer surgeon at the defendant’s hospital
operated on the plaintiff without her consent while she was under
anesthesia for a related investigatory observation.
the plaintiff claimed that the trial court’s informed consent
instruction to the jury wrongfully placed the burden of proving
failure to warn a patient about a material risk on the plaintiff. 522
P.2d 852, 859 (Wash. Ct. App. 1974),
aff’d
,
The patient is entitled to rely upon the physician to tell him what he needs to know about the condition of his own body. The patient has the right to chart his own destiny, and the doctor must supply the patient with the material facts the patient will need in order to intelligently chart that destiny with dignity.
Id.
at 860. When we declared in
Nixdorf
that a patient has a “right
to determine what shall or shall not be done with his body,” we
quoted this language from
Miller
.
Nixdorf
,
5. The District Court Did Not Err When It Concluded that Serious Issues Exist Regarding SB 174’s Alleged Infringements on a Right to Make Decisions About One’s Family Free from Undue Government Interference PPAU claimed before the district court that SB 174
infringed a “natural” and “fundamental right to determine one’s family composition and to decide for oneself and one’s family how best to care for one’s existing children.” The district court concluded that PPAU demonstrated serious issues on the merits of whether SB 174 infringes on a “right to determine one’s family composition under article I, sections 2, 25, and 27 of the Utah Constitution.” The district court stated that In re J.P. meant that there exists “at least a reasonable argument to extend decisions relating whether to have a child, to family decisions and family rights such as the relationship of parent to child.” See In re J.P. , 648 P.2d 1364, 1372–74 (Utah 1982). As we have discussed, In re J.P. held that the Utah
Constitution protects “the inherent and retained right of a parent to maintain parental ties to his or her child.” Id. at 1377. In re J.P. *60 recognized that one of the basic principles for which government is established is to guarantee an individual’s “right to form and preserve the family.” Id. at 1373 (cleaned up). PPAU and the State disagree over whether an inference can be drawn from In re J.P. that one has constitutional rights to not form a family and to preserve one’s family as it stands. In In re J.P. , we recognized that people had a
well-established natural and intrinsic right to marry and that the
right to procreate was among the “basic civil rights of man.”
Id.
(first citing
Loving v. Virginia
,
the reasoning and conclusions of ‘substantive due process cases
like
Roe
.
’
” (Quoting
path from that in
Roe v. Wade
,
protects is rooted in the same soil as the principles that we recognized in In re J.P. The possibility that an unenumerated right to make decisions about one’s family free from undue government interference may be found in the same constitutional principles we recognized in In re J.P. means that the district court did not err when it concluded that there exist serious issues on the merits which should be the subject of further litigation. The State argues that PPAU has failed to offer an original
public meaning analysis of the Utah Constitution to support a fundamental right to make decisions about one’s family free from undue government interference. On remand, the parties are free to engage in an original public meaning analysis as to the scope of the rights In re J.P. recognizes. But, for rule 65A purposes, our prior recognition of a right to form and preserve one’s family is sufficient to raise serious issues speaking to the merits of PPAU’s claim to justify the injunction. *62 U
6. The District Court Did Not Err When It Concluded that Serious Issues Exist Regarding Whether SB 174 Infringes on the Equal Rights Provision of the Utah Constitution ¶180 The Utah Constitution’s Equal Rights provision states, “The rights of citizens of the State of Utah to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges.” TAH C ONST . art. IV, § 1. PPAU argued before the district court that SB 174 violated this provision because its “disproportionate effects [on women] flatly undermine women’s equal privileges of citizenship.” PPAU asserted that SB 174 “treats men and women differently, or . . . disproportionately impairs women’s ability to fully enjoy their privileges and civil, political, and religious rights.” PPAU provided examples of SB 174’s anticipated effects that it argued would infringe on women’s “civil, political, and religious rights.” PPAU contended that SB 174 “disproportionately limits women’s bodily autonomy and liberty, their ability to decide for themselves matters of great consequence to their lives, and their ability to obtain the same education and financial independence available to those who cannot become pregnant.” The district court held that PPAU demonstrated serious issues on the merits of whether SB 174 infringes on the rights protected by “Utah’s Equal Rights Amendment (article IV, section 1 of the Utah Constitution.)” [43] The State argues that article IV, section 1 is nothing more
than a “voting-rights provision.” [44] The State contends that the In its oral order, the court stated “There is an argument here that this Act treats classes of people differently and there is potentially a violation there of Article I, Section 1; Article IV, Section 1 [Equal Rights provision]; Article I, Section 24 [Uniform Operation of Laws provision].” We offer no opinion on PPAU’s section 24 argument. The State also claims that, to the extent article IV, section 1
confers rights not directly tied to suffrage, the “general public in 1896 did not understand abortion to be [expressly] one of those ‘civil, political, and religious rights and privileges.’” (Citing U TAH
(continued . . .) *63 second sentence of section 1 guarantees that “both sexes would equally use that [political] process to specify what further ‘civil,’ ‘political,’ or ‘religious’ rights men and women would equally enjoy.” The State urges that “the convention statements on gender equality that PPAU cited in district court, . . . were made in the context of advocating for article IV, section 1 as a voting-rights provision.” The State further offers that newspapers at the time reflect that same understanding. (Citing Women and the Ballot , S ALT L AKE H ERALD -R EPUBLICAN , Mar. 29, 1895, at 3 (recounting that “the suffrage question was the all-absorbing topic for debate” at the convention the day before).) Article IV, section 1’s plain language would appear to
defeat the State’s argument. While the first sentence of the
provision speaks to voting rights, the second sentence—with its
reference to equality in “all civil, political and religious rights and
privileges”—sweeps far more broadly. We normally presume that
the drafters of the Utah Constitution chose their words carefully.
That causes us to avoid interpretations that would treat an entire
clause as surplusage.
See, e.g.
,
United States v. Butler
,
the text is generally the best place to look for understanding, historical sources can be essential to our effort to discern and confirm the original public meaning of the language. Although the text’s plain language may begin and end the analysis, unlike contract interpretation, constitutional inquiry does not require us to find a textual ambiguity before we turn to those other sources. Where doubt exists about the constitution’s meaning, we can and should C ONST . art. IV, § 1.) For the reasons discussed above, this may conflate the constitutional principle with the application of that principle. See supra Part II.A.3.a.
consider all relevant materials. Often that will require a deep immersion in the shared linguistic, political, and legal presuppositions and understandings of the ratification era.
2019 UT 58, ¶ 23, 450 P.3d 1092 (cleaned up). This is because language can change meaning over time and what seems plain to us today might have had a different import when it was written. So here, even though the plain text of the equal rights provision speaks to more than just equal suffrage, we must remain open to the possibility that someone might establish that the constitutional language describes a principle narrower than it appears when we read it today. That is, we cannot dismiss out of hand the State’s assertion that the reference to equal “civil, political and religious rights and privileges” was just another way of saying “equal right to vote.” But what the State offers to prove its point is less than
conclusive. When we look at the entirety of the convention debate, it becomes clear that some delegates thought the provision guaranteed more than just women’s suffrage. This is especially clear from the comments of those who opposed the amendment. For example, one opponent read a quote from the First Lady of Georgia opining, “This question by those advocating woman’s suffrage is misstated when they ask for equal rights, for women exercise a great number of rights, a few of which are unequal in responsibility by any that men hold. Men and women may have equal rights and not yet possess the same rights.” 1 O FFICIAL R EPORT OF THE P ROCEEDINGS AND D EBATES OF THE C ONVENTION 467 (Star Printing Co. 1898 ed.) [hereinafter C ONVENTION D EBATES ]. We have noted that the meaning of language changes over
time.
See, e.g.
,
State v. Reyes
,
stated,
We are here to formulate fundamental principles, and the balance should be left for the Legislature to arrange in the future. We are not here to enact all the laws that are necessary, but simply to formulate that fundamental principle upon which laws shall be founded. I am in favor of suffrage, but I am not in favor of granting to women all the rights that men enjoy. I don’t think that the ladies of this Territory ask for all those rights and privileges.
Id. at 553. In response to one of the chief opponents of the equal rights provision—a delegate who advocated that the lack of equal suffrage was a divine commandment—another delegate proclaimed that he supported the equal rights provision because Christian scripture provides that “Woman, thou art man’s equal and companion, together thou shalt travel the journey of life, and enjoy equally with him all rights and privileges.” Id. at 568. These excerpts from the convention debates suggest that both proponents and opponents of article IV, section 1 were aware that article IV guaranteed women more than equal voting rights. [46] Examples from other state constitutions support this conclusion. Wyoming guaranteed equal rights to men and women before Utah did. Wyoming’s 1890 constitution stated, “Since equality in the enjoyment of natural and civil rights is only made sure through political equality, the laws of this state affecting the political rights and privileges of its citizens shall be without distinction of race, color, sex.” W YO . C ONST . art. I, § 3. Like the Utah Constitution, Wyoming’s constitution also provided, “The rights of citizens of the State [] to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this state shall equally enjoy all civil, political and religious rights and privileges.” Id. art. VI, § 1. The delegates to Utah’s constitutional convention referred to the Wyoming provision when they debated the Equal Rights Provision. See C ONVENTION D EBATES , supra ¶ 187, at 469, 540, 570, 587, 606.
(continued . . .) *66 The historical record is far richer than the convention statements and newspaper articles the State points to in hopes of limiting article IV, section 1 to less than its text suggests. There are ample examples of delegates who advocated an understanding that the provision meant what it appears to say and guaranteed Utah women equal civil, political, and religious rights and privileges. And, of course, as we have discussed, the relevant inquiry encompasses more than just what the delegates to the convention thought the language meant. The burden will ultimately fall to PPAU to demonstrate that SB 174 infringes on the rights this provision protects. But for the purposes of a preliminary injunction, the district court did not err when it concluded that there are serious issues concerning the meaning of the Equal Rights provision and whether SB 174 infringes on the rights it guarantees. B. The District Court Did Not Abuse Its Discretion When It Determined
that PPAU, and Its Patients, Would Be Irreparably Harmed Without
the Preliminary Injunction The district court determined that PPAU “made a strong
showing that . . . [SB 174] will cause irreparable harm to PPAU, its patients, and its staff.” The court pointed to: (1) the physical, emotional, and financial costs of being forced to carry a pregnancy that a person has decided to end; (2) the threats to safety and health for Utahns who turn to self-managed abortions; (3) delayed care and additional physical, emotional, and financial costs on those who seek an abortion out of state; (4) the delayed care for women who meet an exception to SB 174, resulting from the process for
California’s 1879 constitution stated that “No person shall, on account of sex, be disqualified from entering upon or pursuing any lawful business, vocation, or profession.” C AL . C ONST . art. XX, § 18 (1879). The 1879 constitution, however, only granted male suffrage. Id. art. II, § 1. Californian women waited thirty-two years before voters passed Proposition 4 and guaranteed women the vote. See C AL . C ONST . art. II, § 1 (1911).
Our framers did not expressly guarantee equal rights to people of all races the way Wyoming did. C ONVENTION D EBATES , supra ¶ 187, at 614. But our framers guaranteed women’s right to vote, unlike California. This suggests that those who debated article IV, section 1 understood the difference between equal rights and equal voting rights.
approval; and (5) the threat of criminal and licensing penalties, reputational harm, and harm to the livelihoods of PPAU and its staff. The State argues that the district court erred in two ways.
The State first argues that the district court erred when it considered the harm to PPAU’s patients in its irreparable harm analysis. According to the State, this was error because the patients “are not parties to this case and PPAU has no standing to press their rights.” To support its assertion, the State points to rule 65A’s language, asserting that “a preliminary injunction may issue ‘only’ if the applicant shows . . . it will suffer irreparable harm absent the injunction.” [47] (Emphasis added.) When a plaintiff has standing to assert the rights of third
parties, the interests of the plaintiff and the third party are aligned
to the extent that “there can be no doubt that [plaintiff] will be a
motivated, effective advocate” for the third party’s rights.
Powers v.
Ohio
,
appropriately asserting the rights of third parties would almost never be able to obtain an injunction. This would undermine the
(continued . . .) *68 it has standing to represent are sufficiently aligned, the harms suffered by either are appropriate considerations in determining irreparable harm. The State does not cite any caselaw for the proposition
that a court should not consider the harms to third parties when a
plaintiff with third-party standing seeks an injunction. This is not
surprising since we appear to have not addressed the question
directly. But other courts, including the United States Supreme
Court, have. Unlike Utah’s rule 65A, which uses the term
“applicant,” federal courts look to the harm to the “movant” or the
“moving party.”
See, e.g.
, F ED . R. C IV . P. 65;
Roberts v. Van Buren Pub.
Schs.
,
“certain actions taken . . . related to immigrant detainees held at the
Federal Detention Center in Sheridan, Oregon.” 342 F. Supp. 3d
1067, 1071 (D. Or. 2018). Specifically, plaintiffs alleged that these
actions violated detainees’ Fifth Amendment right to counsel and
their statutory rights to legal visitation and phone calls.
Id.
at 1079–
81. Concluding that one of the plaintiffs had third-party standing
to advocate on behalf of the detainees, the court considered only
harms to the third parties, rather than the harms to the plaintiffs
purpose of third-party standing—providing an avenue for claims
that otherwise might not be heard.
Kowalski v. Tesmer
,
asserting third-party standing. It ultimately concluded that there was irreparable harm solely because of the “likely violati[ons] [of] immigrant detainees’ constitutional rights.” Id. at 1081.
¶198 In
Hellebust v. Brownback
, plaintiffs requested an
injunction to prevent the Kansas State Board of Agriculture from
conducting elections, alleging that the electoral process violated the
Fourteenth Amendment.
¶199 And in
Pro-Choice Network of Western New York v. Project
Rescue Western New York
, plaintiffs sought to enjoin the defendant
“from engaging in an allegedly illegal effort to prevent women
from obtaining abortions and other gynecological and family
planning services.”
Civil Procedure 65A. Certainly, the State has articulated no reason why we should not follow the lead of those courts that have allowed a plaintiff with third-party standing to use the harms suffered by those whose rights it seeks to vindicate to support an application for preliminary injunction. Looking to the harms PPAU’s patients would suffer, the
district court properly concluded that PPAU had established irreparable harm. PPAU introduced, among other evidence, three declarations from various professionals discussing the impact of SB 174 on itself and its patients. These declarations attested to the physical, emotional, and financial impact SB 174 would have on women who would be required to carry unwanted pregnancies to term. The declarations explained that even “in an
uncomplicated pregnancy, an individual experiences a wide range of physiological challenges” and that pregnancy “can also *70 exacerbate preexisting health conditions.” The declarants further opined that “[p]regnancy may also induce or exacerbate mental health conditions.” (First citing Kimberly Ann Yonkers et al., Diagnosis, Pathophysiology, and Management of Mood Disorders in Pregnant and Postpartum Women , 117 O BSTETRICS & G YNECOLOGY 961, 963 (2011); and then citing F. Carol Bruce et al., Maternal Morbidity Rates in a Managed Care Population , 111 O BSTETRICS & G YNECOLOGY 1089, 1092 (2008).)
¶203 PPAU’s declarations explained that “[s]ome side-effects of pregnancy render patients unable to work,” and that “pregnancy-related discrimination can result in lower earnings both during pregnancy and over time.” (First citing N AT ’ L P’ SHIP FOR W OMEN & F AMS ., B Y THE N UMBERS : W OMEN C ONTINUE TO F ACE P REGNANCY D ISCRIMINATION IN THE W ORKPLACE 1–2 (2016); and then citing Jennifer Bennett Shinall, The Pregnancy Penalty , 103 M INN . L. R EV . 749, 787–89 (2018).) The declarants predicted that if SB 174 is enforced, Utahns
“will be forced either to remain pregnant against their will; [or] go out of state for an abortion.” They further discussed that those who travel out of state will “in most instances incur[] significantly greater travel-related expenses and logistical burdens than if they could obtain an abortion in their home state.” The declarations also detailed the burdens on women who are eligible for one of SB 174’s exceptions. For example, when an abortion can be obtained under SB 174 because of a qualifying fetal diagnosis, the paperwork process “is likely to delay access to care and increase the expense and emotional toll of such a diagnosis.” And a rape survivor that becomes pregnant “must disclose their identity, personal contact information, and invasive details about the rape” to obtain an abortion under SB 174. In addition to the declarations, PPAU provided deposition testimony from a Utah Department of Health and Human Services representative who stated that there has been an “increase in maternal mortality” since 1990 and that “between five and ten women a year . . . die as a complication of pregnancy.” PPAU offered evidence that “attempt[s] to obtain an abortion outside of the medical system . . . may in some cases be unsafe,” in part because these attempts “may rely on harmful tactics such as herbal or homeopathic remedies, intentional trauma to the abdomen, abusing alcohol or illicit drugs, or misusing dangerous *71 hormonal pills.” (Citing D. Grossman et al., T EX . P OL ’ Y E VALUATION P ROJECT , Knowledge, Opinion and Experience Related to Abortion Self- Induction in Texas 3 (2015).) The district court also considered an amicus brief from the
American College of Obstetricians and Gynecologists, the American Medical Association, and the Society for Maternal-Fetal Medicine. This brief discussed the increased risk that women will attempt unsafe, self-managed abortions. It additionally stated that “by limiting the maternal life and health exception only to death and ‘substantial and irreversible impairment of a major bodily function,’’’ SB 174’s narrow exceptions “fail[] to take into account whether patients experienced issues that threatened their lives or the permanent impairment of a major bodily function during prior pregnancies.” They further noted, “Any of these prior conditions can progress or reoccur if abortion care is not available. Various complications that present danger to the health of the pregnant patient also can directly affect fetal development and survival.” This briefing also examined the safety of abortion procedures, and how childbirth presents a much greater risk of death than abortion. It additionally raised the impact of abortion bans on undermining the physician-patient relationship, by compromising the physician’s obligation to act in the “patients’ best medical interest.” The briefing described this as an “impossible choice” for physicians to balance their own risk of prosecution against the health of their patient and that this “could cause some physicians to second guess the necessity of critical abortion care until the pregnant patient has a serious medical complication or it is too late to save the pregnant patient’s life.” The State provided no evidence to rebut PPAU’s showing of harm. On this record, we cannot conclude that the district court abused its discretion when it concluded that PPAU had shown that the injunction would prevent irreparable harm. It bears noting that PPAU also put evidence before the district
court of the harms that it would face as an organization without an injunction. PPAU argued that it was under threat of criminal and licensing penalties if it failed to comply with SB 174. Though not in the context of a preliminary injunction, the United States Supreme Court has held that “a credible threat of prosecution” is sufficient
(continued . . .) *72 C. The District Court Did Not Abuse Its Discretion When It Determined
that the Balance of Harms Weighs in Favor of PPAU The balance of harms prong considers whether the
applicant’s injury exceeds the potential injury to the defendant. Cf. Amoco Prod. Co. v. Vill. of Gambell , 480 U.S. 531, 542 (1987) (“[A] court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.”). The State did not address the balance of harms in its
district court brief. The district court nevertheless weighed the
State’s interest in protecting unborn life as well as the State’s
interest in enforcing a statute that is presumed to be constitutional.
At the preliminary injunction hearing, the court stated
that, “I assume that the legislature’s goal is, . . . rooted in a moral
to establish an injury-in-fact sufficient for Article III standing.
Susan
B. Anthony List v. Driehaus
,
Relying on this rationale, other federal courts have concluded
that the threat of criminal or civil penalties can establish irreparable
harm.
See, e.g.
,
VanDerStok v. Garland
,
conviction.” The district court noted that many “women are going to obtain [abortion] treatment out of state,” that many are “going to use readily available medication,” and many women are “going to resort to unsafe means.” The court further stated that “I don’t have any clear picture of [] whether this Act, which will cause harm, will actually prevent the harm that it was meant to prevent. . . . I’m balancing what is a fairly predictable, a [known] harm, against something that’s very unpredictable.” The court’s written order echoed this conclusion when it explained that “it is unclear on this record whether and to what extent [SB 174] will ultimately further its legislative goals.” The State challenges the district court’s determination in
three ways. The State first argues that the court should not have
considered PPAU’s asserted third-party harms. As we explained,
PPAU’s third-party standing allows it to point to harms of those
third parties whose interests it promotes.
Supra
Part II.B.
The State next claims that the district court ignored harms
to the State that arise from enjoining “statutes enacted by
representatives of its people.” (First citing
Maryland v. King
, 567
U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers); then citing
N.M.
Dep’t of Game & Fish v. U.S. Dep’t of Interior
,
of discretion.
See Osguthorpe v. ASC Utah, Inc.
,
¶216 The State is correct that when we consider constitutional
challenges to a statute, “we presume the statute to be constitutional,
resolving any reasonable doubts in favor of constitutionality.”
South Salt Lake City v. Maese
,
¶217 To be sure, the State has an interest in the enforcement of laws enacted by the people’s duly elected representatives. But Utahns also have an interest in not having their constitutional rights infringed. Because PPAU demonstrated the existence of serious issues going to SB 174’s constitutionality, see supra Part II.A, the district court did not abuse its discretion when it looked at the evidence placed before it at the hearing and concluded that the harm to PPAU’s patients outweighed the harm to the State’s interest in enforcing the law while its constitutionality remains in dispute. The State also argues that delaying SB 174’s enforcement
imposes “a particularly severe irreparable harm on the State” considering its interest in “the preservation of human life, both the mother’s and unborn child’s.” (First citing U TAH C ODE § 76-7- 301.1(1); and then citing Dobbs v. Jackson Women’s Health Org. , 597 U.S. 215, 301 (2022).) The State claims that the harm to its interest in “the preservation of human life, both the mother’s and unborn child’s” outweighs any harm PPAU might suffer. The State correctly points out that the Legislature has long asserted a “compelling interest in the protection of the lives of unborn children.” (Quoting U TAH C ODE § 76-7-301.1(2).) The difficulty for the State on appeal is that PPAU introduced evidence to support its assertions concerning harm. In contrast, the State provided the district court with no evidence to support its claims that SB 174 would further its interests or, conversely, that the injunction would result in any significant harm. The State now asserts that it “did not need to present witness declarations or other fact evidence supporting . . . longstanding State interests in preserving life . . . and the obvious, indisputable, and irreparable loss of life that abortion causes.” There is no question that the State has asserted an interest in protecting life. See U TAH C ODE § 76-7-301.1(2). Nor is there any question that the State has an interest in the preservation of human life. The existence of these interests is not in doubt, and we agree *75 with the State that it did not need to present the district court with evidence to validate these interests . But the same cannot be said about the injury the State claims those interests would face from the injunction. The State offered the district court no evidence—as opposed to argument—that would have allowed the district court to assess the extent to which the interests SB 174 is designed to promote would be impaired if an injunction issued.
¶221 Not only that, but PPAU presented the district court with evidence contesting SB 174’s ability to achieve the legislation’s goals. For example, the record contains declarations asserting that some individuals will obtain abortions either outside of the medical system or in other states. Similarly, the State argues that SB 174 promotes the health
of women. But PPAU introduced evidence that SB 174 threatens to diminish those interests by interfering with physicians’ professional obligations. PPAU demonstrated that SB 174 “forces physicians to choose between the ethical practice of medicine— counseling and acting in their patients’ best interest—and obeying the law.” (Citing A M . M ED . A SS ’ N , Opinion 1.1.3 - Patient Rights, in C ODE OF M EDICAL E THICS (2016) (“Patients should be able to expect that their physicians will provide guidance about what they consider the optimal course of action for the patient based on the physician’s objective professional judgment.”).) As noted above, evidence before the district court described that fear of prosecution could prompt some physicians to delay providing needed medical care until the patient faces a serious medical complication and how this risks the loss of the patient’s life. Accordingly, on the record developed before the district
court, we cannot say that the court abused its discretion or went against the clear weight of the evidence when it concluded that “it is unclear on this record whether and to what extent [SB 174] will ultimately further [the State’s] legislative goals” and determined that the balance of harms weighs in PPAU’s favor.
D. The District Court Did Not Abuse Its Discretion When It Determined that a Preliminary Injunction Would Not Be Adverse to
the Public Interest The purpose of a preliminary injunction is “to preserve
the status quo pending the outcome of the case.”
Hunsaker v. Kersh
,
injunction would not be adverse to the public interest because it would maintain the status quo of women’s health treatment as it has been legally permitted for nearly fifty years. The State challenges the court’s conclusion, arguing that “the injunction does not maintain the status quo; it changes the status quo to permit abortions that are illegal under SB 174.” The State posits that because Dobbs v. Jackson Women’s Health Organization “returned the question of abortion back to the citizens of Utah,” SB 174 is the status quo. The State further explains its position that the injunction “maintain[s] the status quo—as if Dobbs had never been decided” and, therefore, it, in fact, changed the status quo. The appropriate time to determine the status quo is “the
last uncontested status between the parties which preceded the
controversy.”
Schrier v. Univ. of Colo.
,
discretion because it “ignore[d] the compelling State and public interest in preserving the lives of unborn children and mothers.” It posits that the district court’s decision wrongly “‘second-guess[es]’” the Legislature’s “‘determinations of the public interest.’” (Quoting Fish v. Kobach , 840 F.3d 710, 755 (10th Cir. 2016).) To the contrary, the district court explicitly acknowledged the Legislature’s declared policy and its interest in protecting unborn life. The district court did not second-guess the Legislature’s determinations. It surveyed the evidence presented during the proceedings and determined that, in light of what it had before it, it would not be adverse to the public interest to enjoin the law’s enforcement while the parties litigate the serious constitutional issues. On the evidence the parties presented to the district court, we cannot conclude that the court abused its discretion or went against the clear weight of that evidence when it decided that maintaining the status quo would not be adverse to the public interest.
D URRANT , C.J., dissenting
CONCLUSION ¶228 PPAU has standing to press its claims and the claims of its patients. The district court did not err when it concluded that
PPAU had raised serious issues about the constitutionality of SB 174. The court did not abuse its discretion when it concluded that PPAU and its patients would be irreparably harmed without the injunction. Likewise, the court did not abuse its discretion when it concluded that the balance of harms tipped in favor of enjoining SB 174 while the parties litigate its constitutionality. Nor did the court act outside the bounds of its discretion when it concluded that the injunction would not be adverse to the public interest. We affirm the district court’s decision to enjoin the
enforcement of SB 174 while the litigation is pending.
C HIEF J USTICE D URRANT , dissenting: Since our state’s founding, we have required that plaintiffs show standing as a threshold matter to bring a case in court. [51] And we have traditionally required that—to meet this threshold—plaintiffs show they have “suffered some distinct and palpable injury that gives [them] a personal stake in the outcome of the legal dispute.” [52] Our precedent firmly establishes that this traditional rule safeguards core principles, among them the separation of powers mandated by the Utah Constitution [53] and the integrity and efficiency of the judiciary as a whole. [54]
[51]
See, e.g.
,
Welsh v. Lambert
, 54 P. 975, 975 (Utah 1898)
(dismissing appeal for lack of standing);
Alpine Homes, Inc. v. City
of West Jordan
,
[52]
Jenkins v. Swan
,
(Utah 1978);
Utah Chapter of the Sierra Club v. Utah Air Quality Bd.
,
D URRANT , C.J., dissenting This traditional rule also imposes a limit on the claims
that plaintiffs can bring. Simply put, plaintiffs must show that the injury they suffered justifies the remedy they seek. [55] This generally prevents plaintiffs from claiming they deserve a remedy based on an injury suffered by a third party who is not involved in the lawsuit. Our precedent creates few exceptions to this rule, two of
which—public-interest standing and third-party standing—are implicated in this case. These exceptions are implicated because of the claims PPAU brings. While PPAU asserts that the enforcement of SB 174 would cause it to suffer various economic and reputational injuries, none of the arguments in its complaint or request for a preliminary injunction rely on those injuries. PPAU’s arguments instead are premised on the harms SB 174’s enforcement would cause to the rights and interests of PPAU’s patients. [56] As the majority agrees, PPAU must show that it has standing to assert these claims on its patients’ behalf. [57] The district court concluded that PPAU had standing to
assert these claims based on the concept of public-interest standing created in Jenkins v. Swan . [58] The majority now affirms that decision on different grounds, holding that PPAU may assert these claims based on the concept of third-party standing created in Shelledy v. Lore . [59] I respectfully disagree with both conclusions.
[55]
See Shelledy v. Lore
,
[56] See supra ¶ 10 (listing PPAU’s claims).
[57] Supra ¶ 56. See675 P.2d at 1150 .836 P.2d at 789 .
D URRANT , C.J., dissenting
I. S HELLEDY ’ S “I MPOSSIBILITY ” R EQUIREMENT In Shelledy , we set out a three-factor test to determine when a plaintiff was entitled to claim third-party standing. [60] This test requires plaintiffs to show “first, the presence of some substantial relationship between the claimant and the third parties; second, the impossibility of the rightholders asserting their own constitutional rights; and third, the need to avoid a dilution of third parties’ constitutional rights that would result were the assertion of [third-party standing] not permitted.” [61] The majority holds that PPAU satisfies all three factors. [62] While I do not necessarily agree with the majority’s reasoning regarding the first and third factors, my strongest objection is to its treatment of the second. More specifically, I disagree with both how the majority interprets Shelledy ’s “impossibility” requirement and how it then applies that requirement to the facts of this case. In my view, defining “impossibility” is straightforward. The word is commonly used in both legal and lay contexts, and its meaning is the same in both. Something is an impossibility when it “cannot occur, exist, or be done,” [63] when it is “not within the realm of the possible.” [64] This definition distinguishes something that is
[60]
Shelledy v. Lore
,
[61] Shelledy , 836 P.2d at 789 (quoting Note, Standing to Assert Constitutional Jus Tertii , 88 H ARV . L. R EV . 423, 425 (1974)).
[62] Supra ¶ 81. Impossibility , B LACK ’ S L AW D ICTIONARY (12th ed. 2024). Impossible , W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY (1961); see also Impossibility , W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY (1961) (“[T]he quality or state of being impossible . . . .”).
D URRANT , C.J., dissenting
impossible from something that is merely improbable or impractical. [65] Shelledy requires a plaintiff seeking third-party standing
to show “the impossibility of the [third parties] asserting their own constitutional rights.” [66] I would read this plainly: the plaintiff must show that it would be impossible for the relevant third parties to come to court themselves. Scenarios in which such impossibility occurs can be
readily found in cases involving third-party standing. For example, in Barrows v. Jackson , a white landowner who sold her property to black purchasers was sued over a racially restrictive covenant in the property’s deed. [67] The U.S. Supreme Court allowed the landowner to assert the purchasers’ Fourteenth Amendment rights because it was legally impossible for the purchasers to do so themselves; the purchasers weren’t being sued, and so hadn’t suffered any injury that would give them standing to intervene. [68] This straightforward interpretation of “impossibility” also aligns with how the Shelledy court applied the test it had just created to the facts of that case. The plaintiff there attempted to assert the rights of the Small Business Administration (SBA), a federal agency. [69] This court determined that the “impossibility” prong of the third-party standing test had not been satisfied because “the SBA has never been precluded from asserting its [own] immune status.” [70] This suggests that the Shelledy court was defining “impossibility” in line with its common usage; to show that it was impossible for the SBA to assert its rights, the plaintiff
[65] Compare Impossible , W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY (1961) (“[I]ncapable of being or of occurring . . . .”), with Improbable , W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY (1961) (“[U]nlikely to be true or to occur . . . .”).
[66]
[67]
[68]
Id.
at 257 (noting that “it would be difficult if not impossible
for the persons whose rights are asserted to present their grievance
before any court”).
Shelledy
,
D URRANT , C.J., dissenting
would have to show that such an assertion had been tried and had failed, or otherwise could not occur. [71] In short, the word “impossibility” has a plain meaning.
That meaning is well understood, readily applicable to third-party standing cases, and in line with the word’s use in Shelledy . I don’t see a reason why we should craft a different definition. [72] The majority disagrees and offers three reasons why we should define “impossibility” to mean (in effect) difficult or unlikely. [73] The majority’s first two rationales are premised on a discrepancy between the language of Shelledy and the sources that Shelledy cited. This is the portion of Shelledy at issue:
The general rule is that a litigant “must assert his own legal rights and interests[] and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin , 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343, 355 (1975) (citations omitted). However, a party may assert the constitutional rights of a third party if certain factors are met: “first, the presence of some substantial relationship between the claimant and the third parties; second, the impossibility of the rightholders asserting their own constitutional rights; and third, the need to avoid a dilution of third parties’ constitutional rights that would result were the assertion of [third-party standing] not permitted.” Note, Standing to Assert Constitutional Jus Tertii , 88 Harv.L.Rev. 423, 425 (197[4]) [hereinafter the Note]. See generally Henry P. Monaghan, Third Party Standing , 84 Colum.L.Rev. 277 (1984); La[u]rence H. [71] See Preclude , B LACK ’ S L AW D ICTIONARY (12th ed. 2024) (“[T]o prevent or make impossible . . . .”). See Textualism , B LACK ’ S L AW D ICTIONARY (12th ed. 2024) (“The
doctrine that the words of a governing text are of paramount concern and that what they fairly convey in their context is what the text means.”). See supra ¶¶ 70–73.
D URRANT , C.J., dissenting
Tribe, American Constitutional Law § 3-19 (2d ed. 1988). [74] The majority’s first argument begins by correctly noting
that Shelledy misconstrued the secondary source from which it pulled its three-factor test. [75] The Shelledy court describes the three quoted factors as necessary conditions for third-party standing to be granted, [76] whereas the Note describes them only as “[t]hree considerations, none of which is of controlling significance, [that] seem to recur” in cases where the U.S. Supreme Court has granted a claimant third-party standing. [77] While I agree that Shelledy misconstrued the Note, I don’t
believe that misconstruction has any legal effect. Simply put, what matters in an opinion is what this court says, not what the author of a source we cite says. Once we quote words, they exist first and foremost in the context of the opinion, not in the context of their source. [78] The majority next argues that, by quoting the Note,
Shelledy referenced the federal test for third-party standing. [79] And because the federal test requires plaintiffs to show only that there is “some genuine obstacle” to the relevant third parties asserting
[74]
Shelledy
,
[75] Supra ¶¶ 71–73.
[76]
[77] Note, Standing to Assert Constitutional Jus Tertii , 88 H ARV . L. R EV . 423, 425 (1974) (cleaned up). See Salt Lake City v. Salt Lake City Water & Elec. Power Co. , 174
P. 1134, 1137–38 (Utah 1918) (“To say that the unexpressed intention of the author controls as against the usual and ordinary meaning of the language is to fly in the face of all rules and canons of construction. To say that a judgment can be made to mean something contrary to the ordinary and usual meaning of the language used . . . would be most dangerous in practice.”). Supra ¶ 71 n.14 (describing “the federal cases from which we borrowed the [third-party standing] doctrine”).
D URRANT , C.J., dissenting
their own rights, we should interpret “impossible” as carrying that same meaning. [80] While I agree that Shelledy made references to the federal
third-party standing test, I disagree with the notion that Shelledy adopted the federal test in any meaningful way. Indeed, the premises of this argument are sufficient to refute it. The fact that Shelledy set out a rule that is explicitly different from the federal test seems a clear statement of intent not to adopt the federal test. The Shelledy court was certainly capable of adopting the federal rule if it had desired to do so. Shelledy was written in 1992. In 1991, the U.S. Supreme Court had plainly stated the federal third-party standing test in Powers v. Ohio . [81] If the Shelledy court had intended to adopt the U.S. Supreme Court’s test, they presumably would have expressed that intention by quoting Powers . Similarly, the majority in Shelledy followed up its citation to the Note with a “ see also ” citation to two other secondary sources. [82] Both sources provide a description of the federal test for third-party standing that doesn’t use the word “impossibility.” [83] Shelledy ’s drafters were clearly aware that there were different tests for third-party standing. The fact that they chose to use a version of the test that required plaintiffs to show that it was impossible for the third parties to assert their own rights should not, in my view, be construed as inadvertent. And I do not believe we should presume that the Shelledy court made a mistake worthy
[80] See supra ¶ 72 (describing the Singleton plurality); supra ¶ 58 n.9 (noting that a majority of the Court had since adopted the Singleton plurality’s position).
[81]
Standing , 84 C OLUM . L. R EV . 277 (1984); L AURENCE H. T RIBE , A MERICAN C ONSTITUTIONAL L AW § 3-19 (2d ed. 1988)). See Monaghan, Third Party Standing , 84 C OLUM . L. R EV . 277,
288–89; T RIBE , A MERICAN C ONSTITUTIONAL L AW § 3-19.
D URRANT , C.J., dissenting
of correction simply because they chose a different test than we might prefer. The majority’s third reason to deviate from a
straightforward interpretation of Shelledy leans on policy concerns. Specifically, the majority contends that taking “impossibility” at face value would make it easier for a plaintiff to invoke another form of alternative standing—public-interest standing—than to invoke third-party standing. [84] As an initial matter, I’m not convinced that the majority’s
prediction is accurate. Indeed, a review of the past few decades of appellate litigation turns up multiple cases where plaintiffs have sought to claim public-interest standing but none in which plaintiffs have sought to claim third-party standing. [85] Given that plaintiffs already seem to find it easier to satisfy the requirements of public-interest standing, the majority’s concerns seem to describe the status quo, not some anomalous future. It’s also possible that the majority’s contemporary
concerns are different from those that motivated the Shelledy court. Less than a decade before Shelledy was published, this court created public-interest standing in Jenkins v. Swan . [86] That decision is rife with warnings about the dangers that come with allowing plaintiffs to bring claims that are not their own. [87] Given the continuity of the court’s composition between Jenkins and Shelledy , it does not seem to me that the Shelledy court would have been eager to lower the bar for alternative-standing claims. [88]
[84] Supra ¶ 71 n.14.
[85]
See, e.g.
,
Gregory v. Shurtleff
,
[86]
Jenkins are well-founded. Allowing plaintiffs without traditional standing to bring claims jeopardizes many of the judiciary’s core
(continued . . .)
D URRANT , C.J., dissenting My final concern lies with the degree of difference
between the Shelledy test laid out in 1992 and the Shelledy test the majority employs today. It is true, as the majority notes, that our opinions sometimes refine tests that were set out in previous cases. [89] But changing “impossibility” to “substantial obstacle” strikes me as well beyond a mere refinement. It is not the sort of minor alteration that stare decisis permits; it is a departure of sufficient magnitude to amount to an effective overturning of the impossibility prong of the Shelledy test. [90] This court has a procedure for overruling its own precedent. [91] Until that procedure is used here, I believe we should treat Shelledy ’s language as controlling.
II. L ACKS B OTH T HIRD -P ARTY S TANDING AND P UBLIC -
I NTEREST S TANDING When the district court granted PPAU’s request for a
preliminary injunction, it did so after concluding that PPAU had public-interest standing under the test laid out by Gregory v. Shurtleff . [92] The majority now affirms the district court’s decision on the alternate ground that PPAU has third-party standing under the test laid out by Shelledy v. Lore . [93] I disagree with both holdings. interests and values. See Shurtleff , 2013 UT 18, ¶¶ 63–121 (Lee, J., concurring in part and dissenting in part).
[89] See supra ¶ 70 n.13 (“[W]e emphasize that refining tests when we apply them is not a novel exercise.”).
[90] The majority notes that “the parties briefed the question of how we should interpret Shelledy ,” and “no party suggested that interpreting the word impossibility would require us to overturn the case.” Supra ¶ 70 n.13. To me it is not surprising that the State found it unnecessary it to make this secondary argument, given that its primary argument was that Shelledy ’s impossibility prong required a showing of legal impossibility and that “[d]owngrading ‘impossibility’ to mere discouragement would nullify the general rule that a party cannot assert the constitutional rights of a third party.”
[91]
See generally Eldridge v. Johndrow
,
D URRANT , C.J., dissenting
¶254 In part this is because, as explained above, I disagree with interpretation of Shelledy ’s “impossibility” the majority’s requirement. PPAU clearly cannot succeed if “impossibility” is given its plain meaning, and indeed PPAU does not argue that it would. But I believe that PPAU lacks standing even under the more lax standard the majority adopts.
A. PPAU Lacks Third-Party Standing ¶255 Under the majority’s definition of “impossibility,” PPAU must show that its patients face a “genuine obstacle” to filing suit themselves. To satisfy this requirement, PPAU offers anonymous declarations from patients as “demonstrat[ions] of why patients are unlikely to bring their own suits” challenging SB 174. Each anonymous declarant faces similar issues: “a lack of knowledge, time, and resources; fear of being in court; and fear” of public repercussions for being associated with abortion litigation. The majority references these same declarations to reach its conclusion that “PPAU’s patients are sufficiently prevented from asserting their own rights.” I am sure that the concerns these declarations raise are
sincerely felt. But I do not agree that these concerns “sufficiently prevent[]” PPAU’s patients from coming to court themselves. Most of my disagreement stems from the question of whether PPAU’s patients would, in fact, need to surmount the obstacles they believe are in their way. PPAU argues that individual patients are effectively
prevented from challenging SB 174 on their own behalf due to the significant time, cost, and expertise that litigating such a high- profile issue requires. While I do not doubt that the parties have invested much time and money in this case, I disagree with the suggestion that an individual plaintiff who challenged SB 174 would have to bear the burden of that litigation alone. Because abortion is a monumentally significant legal
issue, there are multiple national advocacy organizations, PPAU’s parent organization among them, that have both the desire and the means to fully litigate challenges to laws restricting abortion Supra ¶ 76.
D URRANT , C.J., dissenting
access. [95] This very case proves the point: PPAU filed a complaint challenging SB 174’s validity the day after the law went into effect. [96] This eagerness makes it difficult to imagine that PPAU would choose not to support an individual Utahn who personally challenged SB 174. [97] Indeed, such an individual could resolve the present standing dispute simply by joining this case as a plaintiff alongside PPAU, and in so doing avoid the efforts required to file another lawsuit from scratch. It is hard to argue that an obstacle is insurmountable when it is unlikely that an individual plaintiff would actually be required to surmount it. PPAU’s declarants also worry about the unwanted
publicity they could face as someone challenging an abortion ban. Each of the women who filed a declaration in support of PPAU’s suit cited fears of publicity, public shame, and judgment as contributing to their reluctance to challenge SB 174 in their own names. Again, I am sure that these concerns are sincerely held. But, as above, these concerns can be addressed. The easiest way to do so would be by using a pseudonym, which would obscure the plaintiff’s identity and shield her from the public eye. We have never squarely addressed the criteria for
determining when a plaintiff may file a lawsuit under a
[95] This situation is not new. The pseudonymous plaintiff in Roe v. Wade was solicited as a client by “lawyers looking for a plaintiff to test the constitutionality of Texas’s anti-abortion laws.” Margaret G. Farrell, Revisiting Roe v. Wade : Substance and Process in the Abortion Debate , 68 I ND . L.J. 269, 282 (1993). Supra ¶¶ 8–9. A recent press release by the national Planned Parenthood
organization shows this concept in action. Taylor Shelton, a South Carolina resident, is the named plaintiff in a lawsuit challenging that state’s abortion ban. South Carolinian Challenges State’s Abortion Ban in Court , P LANNED P ARENTHOOD (Feb. 5, 2024), https://www.plannedparenthood.org/about-us/newsroom/pres s-releases/south-carolinian-challenges-states-abortion-ban-in- court. Ms. Shelton filed the lawsuit jointly with her doctor and Planned Parenthood South Atlantic. See id. The plaintiffs are “represented by Planned Parenthood Federation of America” and a South Carolina law firm. Id.
D URRANT , C.J., dissenting
pseudonym. [98] But there is good reason to conclude that the use of a pseudonym should be permitted in this case. I would certainly support such a conclusion. Federal courts generally agree that the use of pseudonyms has “implicit recognition” and is appropriate “where there is an important privacy interest to be recognized.” [99] It may be that the protections provided by a pseudonym are inadequate to fully resolve PPAU’s patients’ concerns. But PPAU has not carried its burden of proving that to be so. I would also reject this portion of PPAU’s standing
argument for another reason. The difficulties that PPAU’s patients face are genuine, but they are not that different from those faced by many others who wish to challenge a law’s constitutionality. Appellate litigation is undoubtedly too expensive, inconvenient, and time-consuming. [100] But if these factors alone are enough to justify the exercise of third-party standing, then we risk a dangerous expansion of that doctrine. I believe that the correct interpretation of Shelledy requires
plaintiffs seeking third-party standing to show that it would be impossible for the relevant third parties to assert their own rights. PPAU cannot satisfy that standard. But even under the majority’s
[98]
See Gardner v. Bd. of Cnty. Comm’rs
,
1979); see also Francis M. Dougherty, Annotation, Propriety and Effect of Use of Fictitious Name of Plaintiff in Federal Court , 97 A.L.R. Fed. 369 § 8 (1990) (noting the historical use of pseudonyms in abortion cases). See, e.g. , The Justice Gap: Addressing the Unmet Legal Needs of
Lower-Income Utahns , U TAH B AR F OUNDATION , 1 (Apr. 2020), https://www.utahbarfoundation.org/static/media/UBFJusticeG apFullReport.e99dbe0b776f9580a13f.pdf (listing key findings, including that over “two-thirds of Utah’s lower-income survey respondents indicated that they could not afford a lawyer if they needed one”).
D URRANT , C.J., dissenting
more lenient standard, PPAU still has not shown that it should be permitted to assert third-party standing on behalf of its patients. Accordingly, I dissent from the majority’s reasoning as well as from its conclusion.
B. PPAU Cannot Claim Public-Interest Standing Though the majority does not reach this issue, I also disagree with the district court’s decision that PPAU is entitled to claim public-interest standing. The factors that prevent PPAU from claiming public-interest standing under Shurtleff mirror those that prevent it from claiming third-party standing under Shelledy . Plaintiffs are entitled to public-interest standing only if they can show, among other things, that “the issue is unlikely to be raised at all if the plaintiff is denied standing.” As argued above, that simply is not the case here. The sheer importance of this issue makes litigation on SB 174’s constitutionality inevitable. And there are multiple ways for that litigation to occur that do not require us to extend either public- interest or third-party standing. The most straightforward avenue would be for one of PPAU’s patients either to file her own lawsuit or to join PPAU’s. Because PPAU has not shown that it is unlikely that
another plaintiff would come forward, PPAU is not entitled to claim public-interest standing. And as I would also hold that PPAU should be denied third-party standing, I would overturn the district court’s grant of a preliminary injunction.
Shurtleff
,
Notes
[*] Amici curiae : Victoria S. Ashby, Robert H. Rees, Salt Lake City, for Utah State Legislature; Chaunceton B. Bird, David C. Reymann, Linda Faye Smith, Salt Lake City, for Religious Organizations and Clergy; William C. Duncan, Lehi, for The Sutherland Institute; Thomas R. Lee, John J. Nielsen, James C. Phillips, Salt Lake City, for Pro-Life Utah; Linda Faye Smith, Salt Lake City, for League of Women Voters and Fifty Business Leaders; Frank D. Mylar, Salt Lake City, for American Association of Pro-Life Obstetricians and Gynecologists; Brady Brammer, Pleasant Grove, Julia Payne, Scottsdale, Ariz., for Utah Eagle Forum; William C. Duncan, Lehi, Paul Benjamin Linton, Northbrook, Ill., for Thomas More Society and Family Watch International; David Ferguson, Salt Lake City, (continued . . .)