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These records pertain to the Bush Administration's policies on abortion.
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286185853
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Abortion (State Laws)
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286185853
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document
title
Abortion (State Laws)
description
These records pertain to the Bush Administration's policies on abortion.
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45272-021
collections
Records of the White House Office of Counsel to the President (George H. W. Bush Administration)
Lee S. Liberman General Subject Files
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286185853
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1993-01-20
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1993
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1989-01-20
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1989
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Originally Processed With FOIA(s):
FOIA Number:
2012-2218-F
2012-2218-F
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the George Bush Presidential
Library Staff.
Record Group/Collection:
George H.W. Bush Presidential Records
Collection/Office of Origin:
Counsels Office, White House
Series:
Liberman, Lee S., Files
Subseries:
General Subject Files
OA/ID Number:
45272
Folder ID Number:
45272-021
Folder Title:
Abortion (State Laws)
Stack:
Row:
Section:
Shelf:
Position:
O
O
O
0
O
abale
ABORTION LIMITATION
state
1991
GENERAL SESSION
Land
Enrolled Copy
1. 3. No. 23
By LaRay McAllister
AN ACT RELATING TO ABORTION: PROHIBITING ABORTION EXCEPT UNDER SPECIFIED
CIRCUMSTANCES.
THIS ACT AFFECTS SECTIONS OF UTAH CODE ANNOTATED 1953 AS FOLLOWS:
AMENDS:
76-7-301, AS EMACTED BY CHAPTER 126, LAWS OF UTAH 1981
76-7-302, AS ENACTED BY CHAPTER 33, LAWS OF UTAH 1974
76-7-314, AS ENACTED BY CHAPTER 33, LAWS OF UTAH 1974
76-7-315, AS EMACTED BY CHAPTER 33, LAWS OF UTAH 1974
ENACTS:
76-7-301 , UTAM CODE ANNOTATED 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 76-7-301, Utah Code Annotated 1953, as enacted by
Chapter 126, Laws of Utah 1981, is amended to read:
76-7-301. Definitions.
As used in this part:
(1) "Abortion" means the termination or attempted termination of
human pregnancy after implantation of s fertilized ovum, with an intent
other than to produce 6 live birth or to remove a dead unborn child, and
includes all procedures undertaken to will & live unbern child and
includes all procedures undertaken to produce a miscarriage.
(2) "Physician" means a medical doctor licansed to practice medicine
and surgery in all branches thereof in this scate, or & physician in the
5. 3. No. =:
employment of the government of the United States who is similarly
qualified.
(3) "Hospital" means a general hospital . licensed by the (gesse)
Department of Health according to Chapter 21 of Title 26, and includes &
clinic or other medical facility to the extent that such clinic or other
medical facility provides equipment and personnel sufficient in quantity
and quality to provide the same degree of safety to the pregnant JOHAN
and the unborn child as would be provided for the particular medical
procedures undertaken by a general hospital licensed by the [sesse]
Department of Health. It shall be the responsibility of the [seses]
Department of Health to determine if such clinic or other medical
facility so qualifies and to so certify.
Section 2. Section 76-7-301.1, Jeah Code Annotated 1953, is enacted
to read:
76-7-301.1. Preamble -- Findings and policies of Legislature.
(1) It is the finding and policy of the Legislature. reflecting and
reasserting the provisions of Article I, Secs. 1 and 1. Utah
Constitution, which recognize that liberty and life founded or. inherent
and inalianable rights are entitled to protection of law and due process:
and that unborn children have inherent and inalienable rights that are
entitled to protection by the state of Utah pursuant to the provisions of
the Utah Constitution.
(2) The state of Utah has a compelling interest in the protection of
human life, including that of unborn children, and in the protection of
-2-
which person's rights under the Utah Constitution. to exercise inalienable
rights in accordance with the law.
(3) It is the intent of the Legislature to protect and guarancee to
unborn children thair inherent and inalienable right to life and liberty,
11 required by Article I, Secs. 1 and 7, Utah Constitution.
(4) It is also the policy of the Legislarure and of the state chat.
in connection with abortion. & voman's liberty interest. in !imited
circumstances. may outweigh the unborn child's right to protection.
These limited circumstances arise when the abortion is necessary to save
the pregnant woman's life or prevent Life-shressening grave damage to her
medical
abusical health. and when pregnancy occurs as & result of race or incest.
It is recognized that. in cases of TIDE or inesst. the fac: that the
versan has been an unwilling participant in the reproductive process may
justify the preference of her rights over those of the unborn child. ::
is further the finding and policy of the Legislature and of the SCACE
that & woman RAY terminate the pregnancy if the unborn child would be
bets with grive and irremediable physical or mental defects. the LTS
incompatible with sustained survival.
Section 3. Section 76-7-302, Utah Code Annotated 1953, as enacted by
Chapter 33, Laws of Utah 1974, is amended to read:
76-7-302. Circumstances under which abortion authorized.
(1) An abortion may be performed in this state only (ender the
fottowing circunstancest (1) If performed] by s physician[+] licensed to
practice medicine under the Utah Medical Practice Act or as osteopachic
physician licensed to practice medicine under the Utah Osteopathic
-3-
S. 3. No. 23
Medicine Licensing Ac and, (+2) if performed 90 days or more after the
commencement of the pre sancy as defined by competent medical practices,
it Its] shall be performed in a hospital and (3) performed when
unbern
child
is
possibility
of
outside
womb,
too.
the
tife
sertes
and
damage
to her heatth].
(2) An abortion may be performed in this state - .v under the
following circumstances:
(a) the pregnant woman's attending physician has certified that, in
the physician's professional judgmant, the abortion is necessary to save
her life:
(b) the pregnancy is the result of rape or ripe of a child. as
defined by Sections 76-5-402 and 76-5-402.1, that vas reported by the
victim to & law enforcement agency prior to the abortion:
(e) the pregnancy is the result of incest, as defined by Subsection
76-5-406 (10) and the incident vas reported by the victim to a :av
enforcement sgency prior to the abortion:
(d) in the professional judgment of the pregnant woman's attending
physician, to prevent grave damage to the pregnant voman's medical
health: OF
(e) in the professional fudgment of the pregnant voman's attending
physician, to prevent the birth of a child that would be born with grave
defects.
&
S. B. No. 23
(3) After 20 we: = gestational age, measured from the date
of conception, an aborti 7 may be performed only for those
purposes and circumstances described . Subsection (2) (a), (d)
and (e).
76-7-304. Considerations by physic. 'n--Notice to minor's
parents or guardian or married woman's husb. -d.--To enable the
physician to exercise his best medical judgment, he all:
(1) Consider all factors relevant to the well-being of the
woman upon whom the abortion is to be performed including, but
not limited to,
(a) Her physical, emotional and psychological health and
safety,
(b) Her age,
(c) Her familial situation.
(2) Notify, if possible, the parents or guardian of
the woman upon whom the abortion is to be preformed, if she is a
minor or the husband of the woman, if she is married.
76-7-307. Medical procedure required to save life of unborn
child. If an abortion is performed when the unborn child is
sufficiently developed to have any reasonable possibility of
survival outside its mother's womb, the medical procedure used
must be that which, in the best medical judgment of the physician
will give the unborn child the best chance of survival. No
medical procedure designed to kill or injure an unborn child may
be used unless necessary, in the opinion of the woman's
- 5 -
physician, to save er life or prevent serious and permanent
damage to her healt.
76-7-308. Medica_ skills rec ired to preserve life of
unborn child. Consistent with the F ose of saving the life of
the woman or preventing serious and er. int damage to the
woman's health, the physician performin tr. bortion must use
all of his medical skills to attempt to promote preserve and
maintain the life of any unborn child sufficiently :loped to
have any reasonable possibility of survival outside O. the
mother's womb.
76-7-310. Experimentation with unborn children prohibited--
Testing for genetic defects. Live unborn children may not be
used for experimentation, but when advisable, in the best medical
judgment of the physician, may be tested for genetic defects.
76-7-314. Violations of abortion laws -- Classifications.
(1) Any person who performs, procures or supplies the means
for an abortion other than authorized by this [chapter] part is
guilty of a felony of the [second] third degree. For purposes of
this subsection a person who procures an abortion does not
include a woman who is seeking to have an abortion performed on
herself. A woman who is seeking to have an abortion performed on
herself is not criminally liable under Section 76-2-202.
(2) A violation of Section 76-7-307, 76-7-308, 76-7-310,
76-7-311, or 76-7-312 is a felony of the third degree.
(3) A violation of any other provision of this [act] part
is a class A misdemeanor.
- 6 -
76-7-315. (ceptions to certain requirements in serious
medical emergenc
When due to a rious medical emergency, time does not
permit compliance with 'ection 76 -302 [(2)], Subsection 76-7-
304 (2) or Subsection 76-305 (-
:
provisions of those
sections [shall] do not apply.
- 7 -
CLARIFICATION OF ABORTION LAW
1991
FIRST SPECIAL SESSION
Enrolled Copy
S. B. No. 4
By Lane Beattie
AN ACT RELATING TO THE CRIMINAL CODE; PROVIDING NO LIABILITY FOR CRIMINAL
HOMICIDE ON THE BASIS OF AN ABORTION; REDEFINING THE INCEST
EXCEPTION FOR ABORTION; CLARIFYING THE DEFINITION OF PHYSICIAN;
CONFORMING OTHER CODE SECTIONS TO LANGUAGE CONTAINED IN EXISTING
ABORTION ACT; AND APPROPRIATING $100,000 TO THE ATTORNEY GENERAL'S
OFFICE FOR LITIGATION EXPENSES RELATED TO 1991 S.B. 23; AND
PROVIDING AN EFFECTIVE DATE.
THIS ACT AFFECTS SECTIONS OF UTAH CODE ANNOTATED 1953 AS FOLLOWS:
AMENDS:
76-5-201, AS LAST AMENDED BY CHAPTER 10, LAWS OF UTAH 1991
76-7-301, AS LAST AMENDED BY CHAPTER 1, LAWS OF UTAH 1991
76-7-301.1, AS ENACTED BY CHAPTER 1 AND LAST AMENDED BY CHAPTER 288,
LAWS OF UTAH 1991
76-7-302, AS LAST AMENDED BY CHAPTER 1, LAWS OF UTAH 1991
76-7-307, AS ENACTED BY CHAPTER 33, LAWS OF UTAH 1974
76-7-308, AS ENACTED BY CHAPTER 33, LAWS OF UTAH 1974
76-7-314, AS LAST AMENDED BY CHAPTER 1, LAWS OF UTAH 1991
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 76-5-201, Utah Code Annotated 1953, as last
amended by Chapter 10, Laws of Utah 1991, is amended to read:
76-5-201. Criminal homicide -- Elements -- Designations of
offenses.
S. B. No. 4
licensed to practice medicine under the Utah Osteopathic Medicine
Licensing Act.
(3) "Hospital" means a general hospital licensed by the Department
of Health according to Chapter 21 of Title 26, and includes a clinic or
other medical facility to the extent that such clinic or other medical
facility provides equipment and personnel sufficient in quantity and
quality to provide the same degree of safety to the pregnant woman and
the unborn child as would be provided for the particular medical
procedures undertaken by a general hospital licensed by the Department of
Health. It shall be the responsibility of the Department of Health to
determine if such clinic or other medical facility so qualifies and to so
certify.
Section 3. Section 76-7-301.1, Utah Code Annotated 1953, as enacted
by Chapter 1 and last amended by Chapter 288, Laws of Utah 1991, is
amended to read:
76-7-301.1. Preamble -- Findings and policies of Legislature.
(1) It is the finding and policy of the Legislature, reflecting and
reasserting the provisions of Article I, Sections 1 and 7, Utah
Constitution, which recognize that (tiberty-and life founded on inherent
and inalienable rights [are] is entitled to protection of law and due
process: and that unborn children have inherent and inalienable rights
that are entitled to protection by the state of Utah pursuant to the
provisions of the Utah Constitution.
(2) The state of Utah has a compelling interest in the protection of
[human tife, including that] the lives of unborn children and the
-3-
S. B. No. 4
protection
of
each
person
rights
under
the
Utah
Constitution,
exercise
instrenable
rights
in
accordance
ith
the
taw].
(3) It is the intent of the Legislature to protect and guarantee to
unborn children their inherent and inalienable right to life [and
tiberty,] as required by Article I, Sections 1 and 7, Utah Constitution.
(4) It is also the policy of the Legislature and of the state that,
in connection with abortion, a woman's liberty interest, in limited
circumstances, may outweigh the unborn child's right to protection.
These limited circumstances arise when the abortion is necessary to save
the pregnant woman's life or prevent grave damage to her medical health,
and when pregnancy occurs as a result of rape or incest. [
is
recognized
in
incest;
the
fact
has
been
an
unwitting
participant
in
the
reproductive
process
may
justify
the
preference
her
those
of
the
unbern
child
]
It is further
the finding and policy of the Legislature and of the state that a woman
may terminate the pregnancy if the unborn child would be born with grave
defects.
Section 4. Section 76-7-302, Utah Code Annocated 1953, as last
amended by Chapter 1, Laws of Utah 1991, is amended to read:
76-7-302. Circumstances under which abortion authorized.
(1) An abortion may be performed in this state only by a physician
licensed to practice medicine under the Utah Medical Practice Act or an
osteopathic physician licensed to practice medicine under the Utah
Osteopathic Medicine Licensing Act and, if performed 90 days or more
-4-
S. B. No. 4
after the commencement of the pregnancy as defined by competent medical
practices, it shall be performed in a hospital.
(2) An abortion may be performed in this state only under the
following circumstances:
(a) [the pregnant woman's attending physician has certified chat?]
in the [phystetants] professional judgment of the pregnant woman's
attending physician, the abortion is necessary to save [her] the pregnant
woman's life;
(b) the pregnancy is the result of rape or rape of a child, as
defined by Sections 76-5-402 and 76-5-402.1, that was reported [by-the
victim] to a law enforcement agency prior to the abortion;
(c) the pregnancy is the result of incest, as defined by Subsection
76-5-406 (10) or Section 76-7-102, and the incident was reported [by-the
victim] to a law enforcement agency prior to the abortion;
(d) in the professional judgment of the pregnant woman's attending
physician, to prevent grave damage to the pregnant woman's medical
health: or
(e) in the professional judgment of the pregnant woman's attending
physician, to prevent the birth of a child that would be born with grave
defects.
(3) After 20 weeks gestational age, measured from the date of
conception, an abortion may be performed only for chose purposes and
circumstances described in Subsections (2)(a), (d), and (e).
(4) The name of a victim reported pursuant to Subsection (b) or (c)
is confidential and may not be revealed by law enforcement or any other
-5-
S. B. No. 4
party except upon approval of the victim. This subsection does not
effect or supersede parental notification requirements otherwise provided
by law.
Section 5. Section 76-7-307, Utah Code Annotated 1953, as enacted by
Chapter 33, Laws of Utah 1974, is amended to read:
76-7-307. Medical procedure required to save life of unborn
child.
If an abortion is performed when the unborn child is sufficiently
developed to have any reasonable possibility of survival outside its
mother's womb, the medical procedure used must be that which, in the best
medical judgment of the physician will give the unborn child the best
chance of survival. No medical procedure designed to kill or injure [an]
that unborn child may be used unless necessary, in the opinion of the
woman's physician. to [save her tife prevent [serious and permanent]
grave damage to her medical health.
Section 6. Section 76-7-308, Utah Code Annotated 1953, as enacted by
Chapter 33, Laws of Utah 1974, is amended to read:
76-7-308. Medical skills required to preserve life of unborn
child.
Consistent with the purpose of saving the life of the woman or
preventing [serious and permanent] grave damage to the woman's medical
health, the physician performing the abortion must use all of his medical
skills to attempt to promote, preserve and maintain the life of any
unborn child sufficiently developed to have any reasonable possibility of
survival outside of the mother's womb.
-6-
S. B. No. 4
Section 7. Section 76-7-314, Utah Code Annotated 1953, as last
amended by Chapter 1, Laws of Utah 1991, is amended to read:
76-7-314. Violations of abortion laws -- Classifications.
(1) (a) Any person who intentionally performal procures or suppties
the
means for] an abortion other than authorized by this part is guilty
of a felony of the third degree. [Por purposes of this subsection
person who procures an abortion does not include]
(b) Notwithstanding any other provision of law, a woman who [is
seeking to have] seeks to have or obtains an abortion [performed for
herself is not criminally liable. [A woman who seeking have an
bertion
performed
on
hersetf
is
not
eriminally
trable
under
Section
76-2-202-]
(2) A violation of Section 76-7-307, 76-7-308, 76-7-310, 76-7-311,
or 76-7-312 is a felony of the third degree.
(3) A violation of any other provision of this part is a class A
misdemeanor.
Section 8. Appropriation.
There is appropriated for Fiscal Year 1990-91 $100,000 from the
General Fund to the Office of the Attorney General for litigation
expenses related to S.B. 23, 1991 Ceneral Session. That money is
nonlapsing.
The amount of $100,000 appropriated for Fiscal year 1991-92 in Item 7
of S. B. 210, 1991 General Session, is hereby repealed and replaced by
this appropriation.
-7-
S. B. No. 4
Section 9. Coordinating Clause.
The provisions of this act supersede any conflicting provision
contained in S.B. 23, Chapter 1, Laws of Utah 1991, and H.B. 257, Chap
288, Laws of Utah 1991.
Section 10. Effective Date.
If approved by two-thirds of all the members elected to each ho
this act takes effect on April 29, 1991.
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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH - CENTRAL DIVISION
JANE L., et al.
ORDERS VACATING TRIAL,
GRANTING MOTION TO DISMISS
& MOTION FOR SUMMARY JUDGMENT
Plaintiffs,
AS TO CERTAIN ISSUES, AND
DETERMINATION THAT REMAINING
V.
ISSUES MAY BE DECIDED
PURSUANT TO PENDING MOTION
NORMAN BANGERTER, et. al.
FOR SUMMARY JUDGMENT
Defendants.
Civil No. 91-C-345G
The posture of this case is that fully briefed and
extensively argued motions to dismiss and for summary judgment
have been submitted for decision and presently are under
advisement. As a prelude to those motions, the parties engaged
in extensive discovery. Various affidavits, deposition testimony
and voluminous other materials have been submitted in direct
support of and in opposition to the pending motions, so that both
motions are being considered as summary judgment motions. In
addition, the parties have prepared and lodged with the court
summaries of all depositions which have been taken, as well as
the depositions themselves, verified summaries of persons whose
depositions were not taken, verified statements of direct
testimony of the persons who were deposed and all exhibits which
the parties rely upon. In this connection, the court referred
all of the materials to the Magistrate Judge for review as to
whether these constitute adjudicative facts relate to an actual
factual dispute between the parties. Both before and since the
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reference to the Magistrate the court has been examining the
depositions, written summaries, exhibits and other documents
which have been submitted in order to evaluate whether material
facts are in dispute, which could prevent disposition of the case
on the motions, or whether some or all of the legal issues can be
decided pursuant to the motions, or whether a trial is necessary.
The materials which have been lodged with the court for
the most part are very helpful and meaningful. These materials
present extensive historical and medical facts about abortions,
pregnancies, professional and expert opinions, statistics, social
and economic data, information concerning religious, family and
psychological impacts, research, child rearing, adoption, and
many other helpful things. These all bear upon such things as
balancing the liberty interest of women in making the choice to
have an abortion against the state's interest in protecting
unborn children, and the validity or invalidity of statutory
exceptions in which the state has determined that abortions
should not be prevented. This information can be of great
assistance to the court in determining the legal issues which are
presented here. However, for the most part, these are not the
kinds of materials which relate to controversies to be decided at
a trial. Rather, these are the type of materials which may
require interpretation or evaluation of evidence to derive legal
conclusions, or from which inferences from undisputed evidence
may be made by the court in arriving at a decision on the legal
2
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issues presented. Some of the materials would not be admissible
under the rules of evidence such as those that are conclusory,
based upon hearsay, or not relevant to the issues. Some are more
helpful and pertinent than others. Nevertheless, the court has
determined to look at and consider all of the non adjudicatory
materials which have been submitted and to receive them as
background facts which will be helpful in ruling upon the legal
issues. There are no material disputed adjudicative or
historical fact issues which relate to disputes of consequence to
the resolution of the case. To the extent there is dispute as to
issues of ultimate fact or mixed questions of fact and law, the
court can and should make determinations and draw inferences
therefrom.
It appears to the court that a sufficient record exists
by reason of the many materials which have been submitted by the
parties for the court to determine the legal issues in this case
by way of summary judgment. Accordingly, the court makes and
enters the following rulings at this time and reserves the right
to expand these bench rulings and to issue follow up written
opinions. Accordingly, it is
ORDERED, that the provisional trial date set in this
matter is vacated. The court determines that a trial in this
case is not necessary. No disputed material issues of
adjudicative fact which relate to disputes of consequence to
resolution of the case have been presented, and there is a
3
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sufficient record, including undisputed evidence and non
adjudicative evidence, from which the legal issues may be
decided. The court is convinced that trial on the merits would
reveal no additional substantial data. Hearing and viewing
witnesses and subjecting them to crossexamination would not aid
the determination since there are no issues of credibility or
controversies of material fact concerning matters of consequence
which are relevant and admissible in these proceedings. It is
FURTHER ORDERED, that the magistrate's Order of March
25, 1992, denying defendants' motion to strike materials
submitted by plaintiffs in opposition to defendants' motion for
summary judgment, which materials were classified by the
magistrate as background information, is approved and adopted.
The court has determined to consider the information as judicial
information which may be helpful pertaining to the legal issues.
otherwise, with respect to materials which may constitute
adjudicative facts, the magistrate's Order is taken under
advisement relative to the issues which will remain under
advisement. It is
FURTHER ORDERED, that recommendations of the magistrate
as to live witnesses and non live witnesses are not directly
adopted since these recommendations go to the scope of a trial
which the court has determined to be unnecessary. However, those
recommendations are taken under advisement as they might pertain
to evidence and issues to be decided in connection with the
4
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motion for summary judgment. To the extent that the magistrate's
recommendations would prevent the court from considering
testimony and exhibits which have been submitted by the parties
as helpful information to assist the court in connection with
determining legal issues, the recommendations are disapproved.
Plaintiffs' objections and defendants' objections relative to
these reports are overruled or are moot, except as may be
consistent with this ruling. It is
FURTHER ORDERED, that plaintiffs' motion to reconsider
the court's prior ruling of January 29, 1992, is denied.
However, the court will take into consideration the testimony and
evidence which has been submitted by the witnesses referred to in
the motion as judicial information and background information
which may be helpful in determining legal issues. It is
FURTHER ORDERED, that the magistrate's recommendation
to permit live testimony of Dr. Ward on the so-called fetal
experimentation ban on research is not approved. There is no
need for a trial on this issue and it is taken under advisement.
Whether the statute prohibits prenatal diagnostic and treatment
procedures and research - and whether the term "experimentation"
is so standardless as to violate due process requirements - are
questions of law and the court has ample material before it to
make that determination. It is
FURTHER ORDERED, that plaintiffs' proffered live
testimony of plaintiffs individually or as representatives of
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classes which have been certified is denied. Declarations have
been filed by such plaintiffs, including pseudonymous
individuals, in support of plaintiffs' application for
preliminary injunction, in support of plaintiffs' motion for
joinder of party plaintiffs, and in support of plaintiffs'
opposition to defendants' motion for summary judgment. All are
before the court and will be considered in connection with issues
not otherwise ruled upon which are presented on summary judgment.
Additional submissions would be cumulative, duplicative and
unnecessary to decision on the legal issues. Live testimony
would add little if anything. Having reviewed testimony which
has been submitted, and there will be further review, the court
expresses respect and empathy for the individual plaintiffs.
However, there is no need for a trial simply to provide what the
court already has. It is
FURTHER ORDERED, that the magistrate's ruling denying
pending Motions to Compel is adopted in part and overruled in
part. To the extent that the magistrate's ruling was entered in
contemplation of a trial it is moot. To the extent that the
magistrate's ruling has to do with discovery materials, it is
also moot. As will be seen, the information sought is no longer
relevant to any issues presented for decision because those
issues are here determined. Proceeding by way of subpoena for
trial purposes or any other purpose is not authorized at this
time. Also, no further discovery may be conducted. The
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discovery cut-off date is long since passed and it appears in any
event that what the parties seek is immaterial to any factual
dispute. The magistrate's dismissal of the motions with
prejudice is clearly erroneous and therefore is disapproved, so
that dismissal is without prejudice in the event of future
proceedings. Otherwise, the magistrate's denial of motions to
compel at this time is approved and adopted. It is
FURTHER ORDERED, that plaintiffs' motion to reopen
depositions or in the alternative to submit further direct
testimony is denied. It is
FURTHER ORDERED, that defendants' pending motion to
dismiss is converted by the court to a motion for summary
judgment. Even though plaintiffs argued the motion to dismiss as
based only upon the allegations of the Amended Complaint,
plaintiffs attached many materials in opposition to that motion,
and defendants argued it both as a pure motion to dismiss and as
a converted motion for summary judgment. However that may be,
the court converts that speaking motion to dismiss into a motion
for summary judgment. The court enters the following rulings
with respect to federal constitutional issues raised therein and
in defendants' motion for summary judgment. These rulings do not
involve the privacy issues and certain other issues which will
remain under advisement.
1.
Vacueness
The court rules as a matter of law that provisions
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of the Utah anti abortion statute set forth in Utah Code Ann. 76-
7-302 (Supp 1991), su sections 2(a), (d) and (e) are not void for
vagueness. Commonly accepted meanings of the terms "necessary to
save the mother's life," "grave damage to the woman's health" and
"grave defects" exist SQ that physicians of common intelligence
can determine a core meaning as to the standard of conduct. In
all events, since the statutory meanings are to be made in the
good faith clinical and professional judgment of the attending
physician, there could be no criminal prosecution under the law.
The Utah laws relating to "medical emergencies" and fetal
"experimentation" are not here ruled upon and are taken under
advisement.
2.
Establishment Clause
The court holds that recognition of rights in
unborn children in Utah's Preamble does not constitute an
establishment of religion in violation of the United States
Constitution. The Utah preamble provides that "[t]he State of
Utah has a compelling interest in the protection of the lives of
unborn children." The Supreme Court has upheld a similar
preamble in the State of Missouri.
This court also rules that regardless of
similarities with LDS Church positions on abortion, Utah's
Statute does not constitute establishment of religion. In
affirming the trial judge in McRae V. Califano, at case in which
it was claimed that the Roman Catholic Church exerted undue
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religious influence, the Supreme Court said:
[I]t does not follow that a statute violates
the Establishment Clause because it 'happens
to coincide or harmonize with the tenets of
some or all religions'
That the
Judaeo-Christian religions oppose stealing
does not mean that a State or the Federal
Government may not, consistent with the
Establishment Clause, enact laws prohibiting
larceny."
McRae, 448 U.S. at 319.
Finally, this court holds that neither does the
Utah statute offend the Establishment of Religion Clause as
constituting an endorsement of religion. This court rules as a
matter of law that the Utah statute does not convey a message of
endorsement of religion. Manifestly, the statute is as
consistent with society's traditional moral framework as it is
with any one or several religions.
3.
Free exercise - Free speech
This court holds that the Utah statute as a matter
of law does not interfere with free exercise of religion. In a
controlling recent case the Supreme Court rejected use of the
Free Exercise Clause to "relieve an individual of the obligation
to comply with a 'valid and neutral law of general applicability'
on the ground that the law proscribes
...
conduct that his
religion prescribes
a
Employment Division V. Smith, 494 US.
872, 879 (1990). An apparent exception exists involving so-
called "hybrid" rights where other constitutional rights such as
free speech in combination with free exercise of religion would
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constitute a violation of the free exercise clause. In this
case, there is no free speech violation because there is no free
speech right to selicit criminal acts. As the Supreme Court has
said, "It rarely has been suggested that the constitutional
freedom for speech and press extends its immunity to speech or
writing used as an integral part of conduct in violation of a
valid criminal statute.'' Osbourne V. Ohio, 495 U.S. 103, 110
(1989)
Another argument is asserted by some clergy plaintiffs:
that not to provide abortion counselling - even of the active and
facilitating type which might amount to conspiracy to break the
law - would interfere with their right to the free exercise of
religion. However, as we have seen, the Supreme court has upheld
valid neutral laws of general applicability - that is, laws which
are not specifically aimed at interference with free exercise of
religion even though that right might be abridged in the
application of the law.
For the foregoing reasons, this court rejects the
contentions that the law violates the constitutional prohibition
against interference with the free exercise of religion. In this
facial challenge case, it follows that the counsellor, clergy,
and doctor plaintiffs whose only role is to provide counsellor
type information should be and are dismissed. Valuable and
thoughtful information submitted by these now dismissed parties
will be considered by the court as background and judicial
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information in connection with matters taken under advisement.
4. Involuntary servitude
In their Sixth Cause of Action, plaintiffs allege
that the Utah Act violates the Thirteenth Amendment. The
Thirteenth Amendment declares that "[n]either slavery nor
involuntary servitude, except as punishment for a crime whereof
the party shall have been duly convicted, shall exist within the
United States, or any place subject to their jurisdiction."
Plaintiffs argue that prohibiting elective abortions forces women
into "slavery" or "involuntary servitude" by carrying a child to
term. In 1897 the Supreme Court held that this amendment "was
not intended to introduce any novel doctrine with respect to
certain descriptions of service which have always been treated as
exceptional; such as military and naval enlistments, or to
disturb the right of parents and guardians to the custody of
their minor children or wards." Robertson V. , 165 U.S. 275, 282
(1897). More recently, the Supreme Court observed that "in every
case in which this Court has found a condition of involuntary
servitude, the victim had no available choice but to work or be
subject to legal sanction.' United States V. Kozminski, 487 U.S.
931, 943 (1988) (emphasis added).
It strains credulity to equate the carrying of a child
to term with "compulsory labor," and the argument borders on the
frivolous. In all events, however, the Utah statute does not
create a situation where the woman has no available choice but to
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bear the child or be subject to legal sanction. No criminal
penalties at all apply to a woman who chooses to abort by going
to another state that permits abortion.
This court holds that the Utah statute as a matter of
law does not violate the constitutional prohibition against
involuntary servitude.
5.
Equal Protection
Plaintiffs' Fourth Cause of Action alleges that
because only women's reproductive choices and rights to bodily
integrity are being denied, the Utah Act discriminates on the
basis of gender in violation of the Fourteenth Amendment to the
United States Constitution. Again, the Supreme Court has ruled
against this kind of challenge. In Michael V. Sonoma County
Superior Court, 450 U.S. 464, 469 (1981), the Supreme Court said,
"this Court has consistently upheld statutes where the gender
classification is not invidious, but rather realistically
reflects the fact that the sexes are not similarly situated in
certain circumstances." This court holds that the Utah anti-
abortion statute does not violate the Equal Protection Clause.
Based upon the foregoing, defendants' motion to dismiss
and portions of defendants' motion for summary judgment are
granted, and plaintiffs' First Cause of Action to the extent
heretofore discussed, and plaintiffs' Fourth, Fifth, Sixth and
Seventh Causes of Action are dismissed as concerns claims arising
under the United States Constitution. All clergy plaintiffs, all
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counsellor plaintiffs, and all medical plaintiffs whose only role
is to provide counsellor type information and who do not
themselves perform abortions are dismissed.
It is
FURTHER ORDERED, that plaintiffs' motion to voluntarily
dismiss claims asserted under the Utah Constitution is taken
under advisement. The privacy claims and certain claims
pertaining to Utah's pre-existing abortion statutes are also
taken under advisement. These claims will be ruled upon pursuant
to the pending motion for summary judgment in due course after
careful review of the applicable record.
The Supreme Court in the Casey case now before it will
determine the level of scrutiny to be applied to statutes
restricting abortion. Although the Utah statute involves an
abortion ban based upon the state's declared compelling interest
in unborn children, the new standard of review likely to be
announced by the court will be of great relevance to this case.
The fully developed record which exists here is such that when
the Supreme Court makes that determination we will be in a
position to apply that new standard of review and thus determine
the remaining issues.
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The standby hearing and trial set for April 21, 1992 is
vacated. All remaining matters are under advisement.
DATED: April 10th 1992.
Grane
JUDGE
COPIES TO:
14
HLSX 91-191
REENGROSSED
Regular Session, 1991
HOUSE BILL NO. 112
BY REPRESENTATIVE SAM THERIOT, SENATOR BARES, REPRESENTATIVES DIMOS,
LANCASTER, LABORDE, SITTIG, HIGGINBOTHAM, ACCARDO, ACKAL, DIEZ,
DONELON, GLOVER, GUIDRY, HAIK, HERRING, LEBLANC, LEMOINE,
MARTIN, STELLY, AND STINE AND SENATORS MCPHERSON, PICARD, CRAIN,
SAUNDERS, AND BRINKHAUS
ABORTION: Prohibits abortion except under certain circumstances
(Governor's signature)
1
AN ACT
2
To amend and reenact R.S. 14:87, relative to abortion; to define and
3
prohibit abortions; to provide for exceptions; to provide for
4
penalties; and to provide for related matters.
5
Be it enacted by the Legislature of Louisiana:
6
Section 1. Legislative findings and purpose. Life begins at
7
conception.
8
It is declared to be the public policy of the state of Louisiana
9
that it has a legitimate compelling interest in protecting, to the
10
greatest extent possible, the life of the unborn from the time of
11
conception until birth. We also affirm our belief that life begins
12
at conception and that life thereafter is a continuum until the time
13
of death.
14
In furtherance of this compelling interest we declare it to be a
15
reasonable and proper exercise of the police power of the state to
16
prohibit and otherwise reasonably regulate, through the imposition of
17
criminal penalties, the performance of abortions.
18
Section 2. R.S. 14:87 is hereby amended and reenacted to read
19
as follows:
Page 1 of 7
REENGROSSED
CODING: Words in struck through type are deletions from existing
law; words underlined are additions.
HLSX 91-191
H.B. NO. 112
1
$87. Abortion
2
A. (1) Abortion is the performance of any of the following
3
acts, with the specific intent of procuring premature delivery
4
of the embryo or fetus terminating a pregnancy:
5
(1) (a) Administration of Administering or prescribing any
6
drug, potion, medicine, or any other substance to a female; or
7
(2) (b) Use of Using any instrument or any other means
8
external force whatsoever on a female.
9
(2) This Section shall not apply to the female who has an
10
abortion.
11
B. It shall not be unlawful for a physician to perform any
12
of the acts described in Subsection A of this Section if
13
performed under the following circumstances:
14
(1) The physician terminates the pregnancy in order to
15
preserve the life or health of the unborn child or to remove a
16
dead unborn child.
17
(2) The physician terminates a pregnancy for the express
18
purpose of saving the life of the mother.
19
(3) The physician terminates a pregnancy which is the
'20
result of rape as defined in either R.S. 14:42, R.S. 14:42.1, or
21
R.S. 14:43 and in which all of the following requirements are
22
met prior to the pregnancy termination:
23
(a) The rape victim obtains a physical examination and/or
24
treatment from a physician other than the physician who is to
25
terminate the pregnancy within five days of the rape to
26
determine whether she was pregnant prior to the rape and to
27
prevent pregnancy and venereal disease, unless the rape victim
28
is incapacitated to such a degree that she is unable to obtain
29
this examination. If the victim is unable to obtain the
30
examination due to such incapacity, then an examination shall be
31
performed within five days after the incapacity is removed; and
Page 2 of 7
REENGROSSED
CODING: Words in struck through type are deletions from existing
law; words underlined are additions.
HLSX 91-191
H.B. NO. 112
1
(b) The rape victim reports the rape to law enforcement
2
officials within seven days of the rape unless the victim is
3
incapacitated to such a degree that she is unable to report the
4
rape. If the victim is unable to report the rape due to such
5
incapacity, then a report shall be made within seven days after
6
the incapacity is removed; and
7
(c) The abortion is performed within thirteen weeks of
8
conception.
9
(4) The physician terminates a pregnancy which is the
10
result of incest as defined in R.S. 14:78, provided the crime is
11
reported to law enforcement officials and the abortion is
12
performed within thirteen weeks of conception.
13
C. (1) Prior to the performance of any abortion under
14
Subsection (B) (3) or (B)(4) of this Section, the physician who
15
is to perform the abortion shall obtain from the victim a
16
statement in writing verifying that she has obtained the
17
physical examination and shall obtain written verification by a
18
law enforcement official that the victim reported the rape to
19
law enforcement officials as required under this Section.
20
(2) Every physician who conducts a physical examination of
21
a rape victim within five days of the rape shall immediately,
22
upon written request of either the victim or the physician who
23
is to perform the abortion on the victim, provide to the victim
24
or the requesting physician written verification of his
25
examination.
26
(3) Every law enforcement official who receives a report
27
of a rape victim within seven days of the rape or receives a
28
report of incest shall immediately, upon written request of
29
either the victim or the physician who is to perform the
30
abortion, provide to the victim or requesting physician written
31
verification of the report which was made to the official.
Page 3 of 7
REENGROSSED
CODING: Words in struck through type are deletions from existing
law; words underlined are additions.
HLSX 91-191
H.B. NO. 112
1
D. As used in this Section, the following words and
2
phrases are defined as follows:
3
(1) "Law enforcement official or officer" means any peace
4
officer or agency empowered to enforce the law in criminal
5
matters within his or its respective jurisdiction, including but
6
not limited to a state police officer, sheriff, constable, local
7
police officer, and district attorney.
8
(2) "Physician" means any person licensed to practice
9
medicine in this state.
10
(3) "Unborn child" means the unborn offspring of human
11
beings from the moment of conception until birth.
12
(4) "Conception" means the contact of spermatozoan with
13
the ovum.
14
E.(1) Whoever commits the crime of abortion shall be
15
imprisoned at hard labor for not less than one nor more than ten
16
years and shall be fined not less than ten thousand dollars nor
17
more than one hundred thousand dollars.
18
(2) This penalty shall not apply to the female who has an
19
abortion.
20
Section 3. If any provision or item of this Act or the
21
application thereof is held invalid, such invalidity shall not affect
22
other provisions, items, or applications of this Act which can be
23
given effect without the invalid provisions, items, or applications,
24
and to this end the provisions of this Act are hereby declared
25
severable.
26
Section 4. This Act shall become effective upon signature by
27
the governor or, if not signed by the governor, upon expiration of
28
the time for bills to become law without signature by the governor,
29
as provided in Article III, Section 18 of the Constitution of
30
Louisiana.
Page 4 of 7
REENGROSSED
CODING: Words in struck through type are deletions from existing
law; words underlined are additions.
HLSX 91-191
H.B. NO. 112
DIGEST
The digest printed below was prepared by House Legislative Services.
It constitutes no part of the bill.
Sam Theriot, et al.
Act
HB No. 112
Present law defines abortion as the performance of one of the
following acts with intent of procuring premature delivery of the
embryo or fetus:
(1) Administration of any drug, potion, or any other substance to a
female; or
(2) Use of any instrument or any other means whatsoever on a fèmale.
Proposed law defines abortion as the performance of one of the
following acts with specific intent to terminate a pregnancy:
(1) Administering or prescribing a drug, potion, medicine, or other
substance to a female; or
(2) Using any instrument or any external force whatsoever on a
female.
Proposed law does not apply to a female having an abortion.
Proposed law does not apply to a physician if the abortion is
performed under the following circumstances:
(1) The pregnancy is terminated to preserve the life or health of
the unborn child or to remove a dead unborn child.
(2) The pregnancy is terminated for the express purpose of saving
the life of the mother.
(3) The abortion terminates a pregnancy which is the result of rape
as defined by law and in which all of the following requirements
are met prior to the termination:
(a) The rape victim obtains a physical examination and/or
treatment from a physician other than the one who is to
perform the abortion within five days of the rape in order
to determine if a pregnancy existed prior to the rape and
to prevent pregnancy or venereal disease, unless the rape
victim is incapacitated. If the victim is incapacitated,
then an examination shall be performed within five days
after the incapacity is removed.
(b) The rape victim reports the rape to law enforcement
officials within seven days of the rape, unless the victim
is incapacitated. If the victim is incapacitated, then a
report shall be made within seven days after the incapacity
is removed.
(c) The abortion is performed within 13 weeks of conception.
Page 5 of 7
REENGROSSED
CODING: Words in struck through type are deletions from existing
law; words underlined are additions.
HLSX 91-191
DIGEST
(4) The abortion terminates a pregnancy which is the result of
incest as defined by law, provided the crime is reported to law
enforcement officials and the abortion is performed within 13
weeks of conception.
Proposed law requires the physician performing the abortion to obtain
from the rape or incest victim a written statement that she has
obtained the required physical examination and to obtain from law
enforcement officials written verification that the victim has timely
reported the rape.
Proposed law requires every physician who examines a rape victim
within five days of the rape to immediately provide, upon written
request of the victim or the physician who is to terminate the
pregnancy, written verification of the examination.
Proposed law requires every law enforcement official who receives a
timely report of a rape or incest victim to immediately provide, upon
written request of the victim or the physician who is to terminate
the pregnancy, written verification of the report to the officials.
Proposed law defines the following terms:
(1) "Law enforcement official or officer" means any peace officer or
agency empowered to enforce criminal law, including a state
police officer, sheriff, constable, local police officer, and
district attorney.
(2) "Physician" means any person licensed to practice medicine in
this state.
(3) "Unborn child" means the unborn offspring of human beings from
the moment of conception until birth.
(4) "Conception" means the contact of spermatozoan with the ovum.
Present law requires imprisonment at hard labor for not less than one
nor more than 10 years for persons convicted of performing an
abortion.
Proposed law retains this penalty provision but requires imposition
of a fine of not less than $10,000 nor more than $100,000. Proposed
law prohibits the imposition of these penalties on the female having
the abortion.
Proposed law provides a specific severability provision.
Effective upon signature by the governor or upon lapse of time for
gubernatorial action.
(Amends R.S. 14:87)
Page 6 of 7
REENGROSSED
HLSX 91-191
DIGEST
Summary of Amendments Adopted by House
Committee Amendments Proposed by House Committee on
Administration of Criminal Justice to the original bill
1.
Deleted the provision allowing a physician to perform an
abortion in order to "treat a physical condition or illness
which is diagnosed and treatable during pregnancy".
2.
Changed the time within which an abortion can be performed
from "within the first 13 weeks of pregnancy" to "within 13
weeks of conception".
3.
Shifted the burden from "the victim notifying the physician
performing the abortion that she has complied with the
requirements for a medical examination and for reporting to
law enforcement officials" to requiring "the physician to
obtain written statements from the victim and from law
enforcement".
Page 7 of 7
REENGROSSED
8
national
RIGHT TO LIFE
Suite 500, 419 7th Street, N.W.
Washington, D.C. 20004-2293 - (202) 626-8800 (FAX) 737-9189 or 347-5907
committee, inc.
STATUTES POTENTIALLY SUBJECT TO REVIVAL IF ROE REVERSED
Statutes Protecting All or Most Unborn Children (11)
State
Circumstance under which abortion permitted
Arizona
life of mother at risk
Arkansas
none stated
Michigan
life of mother at risk
Mississippi
life of mother at risk; rape
New Hampshire
life of mother at risk
Oklahoma
life of mother at risk
South Dakota
life of mother at risk
Texas
life of mother at risk
Vermont*
life of mother at risk
West Virginia
life of mother at risk
Wisconsin
life of mother at risk
*
There is a serious possibility that the Vermont statute would
be struck down by state courts relying on their interpretation of
the Vermont state constitutions as prohibiting protective
legislation.
Statutes Providing No Effective Protection (9)
State
Circumstance under which abortion permitted
Alabama
life or health* of mother
Alaska
abortion on demand until viability
California
gravely impair physical or mental health* of
mother; rape; incest
1
Colorado
serious permanent impairment of physical or mental
health* of mother; child with a disability; rape
(incl. statutory rape under 16); incest
Delaware
permanent injury to physical or mental health* of
mother; child with a disability; forcible rape;
incest
D.C.
life or health* of mother
Hawaii
abortion on demand until viability
Kansas
physical or mental health* of mother; child with a
disability; rape (incl. statutory rape under 16);
incest
New Mexico
grave impairment of physical or mental health* of
mother; rape; incest
* Statutes with a "health" exception are classified as providing
no effective protection because of the way in which the word
"health" has been defined by the Supreme Court. The Court
construed the word "health" in an abortion statute in Doe V.
Bolton, the companion case to Roe V. Wade, to include "all
factors - physical, emotional, psychological, familial, and the
woman's age - relevant to the well-being of the patient." An
abortion for "health" reasons, as interpreted by the courts,
effectively means any and every abortion. See generally,
National Right to Life Committee, "Fact Sheet: Abortions for
Mental Health" (January 1991).
National Right to Life Committee
State Legislative Department
April 1992
2