How the Utah Supreme Court could turn family law principles upside down

In its challenge to Utah’s abortion law, Planned Parenthood Association of Utah argues that a woman must have access to abortion in order to exercise her right to parent and to determine her family’s composition. In simple terms, Planned Parenthood contends that parental rights include the right to end the life of unwanted unborn children. That is an astonishing claim completely antithetical to the long-recognized parental duties to provide for and to protect their children.
The claim is based on Planned Parenthood’s assertion in its complaint that views about when life begins are “inherently religious and spiritual.” What follows logically from that assertion is that whether the unborn child is alive or not is entirely dependent upon the mother’s religious or spiritual views. Biology doesn’t work that way, and determining whether a human being is living is important in law. Utah’s abortion law is based on the fact that life begins at conception, and it resembles the nonreligious, nonspiritual American Law Institute’s pre- Roe and Doe Model Penal Code.
In truth, Planned Parenthood’s dispute with the state is not about when life begins, but about when unborn human beings should be protected by law. Human life is an intrinsic good recognized by the state’s public policy “to encourage all persons to respect the right to life of all other persons … including all unborn persons.”
The Utah law — SB 174 — does not give unborn children rights that would prevent all abortions. But it does value and protect human life by limiting abortion to medically indicated procedures which preserve the mother’s life and health (as with ending an ectopic pregnancy or removing a dead fetus); or when pregnancy is forced (as in cases of rape or incest); or when the baby has a severe brain defect or other lethal conditions the baby can’t survive.
Planned Parenthood of Utah’s novel view that parental rights include the right to end a life, as the state points out in its submission to the Utah Supreme Court, is only one of seven claims contending that Utah’s abortion regulation violates “eleven different state constitutional provisions that alone or in various combinations impliedly “guarantee a right to abortion.”
Since the state constitution never explicitly mentions abortion, the state notes that some “PPAU claims involve double-implied rights — implying a right to abortion from another implied right.”
In other words, Planned Parenthood of Utah is arguing that even though the constitution does not say anything about a right to determine who will be part of your family, such a right can be implied by the language of the constitution. The language of that implied right can then be interpreted as implying a Roe-like right to abortion, making any tie to the constitutional language doubly tenuous.
Surprisingly, Planned Parenthood’s family composition claim relies on a case called In re J.P. In that case, the Utah Supreme Court openly criticized Roe v. Wade for relying on “a ‘right to privacy’ not mentioned in the Constitution to establish other rights unknown at common law.” The court differentiated its own reasoning from that of the Roe court by explaining “that the parental liberty right at issue in this case is fundamental to the existence of the institution of the family, which is ‘deeply rooted in this Nation’s history and tradition,’ and in the ‘history and culture of Western civilization.’ This rooting in history and the common law validates and limits the due process protection afforded parental rights, in contrast to … innovations undisciplined by any but abstract formulae.”
Planned Parenthood of Utah’s doubly implied rights don’t arise directly from the language of the state constitution, nor from the common law, nor from the history of the nation.
The only issue decided by the recent Utah Supreme Court opinion was whether to leave in place the injunction preventing the law’s enforcement while the case is litigated. However, its 78-page majority decision suggests an openness to hear claims similar to those made in cases Dobbs overturned. Planned Parenthood seeks to ground in the Utah Constitution a Roe-like outcome (little or no protection of the unborn until viability) based on arguments used in Casey (women rely on abortion in order to access other rights and opportunities). In a footnote, the court indicated that “the relevant constitutional inquiry is whether the Utah Constitution protects a right that might be infringed by a law unduly restricting abortion access, not whether the Utah Constitution contains an ‘implied right to abortion.’” That appears to be a distinction without a difference.
The court began its analysis by stating that the “Utah Constitution enshrines principles, not application of those principles,” and that the court’s “proper inquiry focuses on what principle the constitution encapsulates and how that principle should apply.” It then illustrated how it might identify a principle not explicitly listed in the Utah Constitution by examining Planned Parenthood’s and the state’s discussion of parental rights and family composition.
While not deciding the issues in the case, the court’s limited examination of Planned Parenthood’s claim that SB 174 infringes 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,” relied on a case called In re J.P., The Court concluded that “the rights that case recognized are bound together by a basic principle: autonomy over decisions concerning one’s family.” The Court acknowledged that it could not say whether abortion restrictions infringe on “the rights we recognized in In re J.P., but there are serious questions regarding the scope of those rights that merit further litigation.”
What is troubling, though, is that the court was silent about another principle embedded in In re J.P.: the child is not to be reduced to the status of chattel (property) “to be treated or mistreated by his or her parents according to their pleasure.” In fact, in parental rights termination cases, the court has stated that “the child’s welfare is the ‘paramount consideration.’ That principle does not imply that the child’s welfare is the sole consideration, to the exclusion of parental rights . . . [but it does mean] that parental rights, though inherent and retained, are not absolute . . ..”
How the court will weigh such conflicting constitutional principles is unclear. Historically, when the principle of parental autonomy conflicts with the principle that the child’s welfare is paramount and the principle that parents have a duty to protect the welfare of children, the state has harmonized those principles by finding life-affirming ways to protect children and to support parents’ efforts to fulfill their parental duties. Only in the worst situations, and generally after reunification efforts have failed, does the state move to terminate parental rights of parents proven to be unfit or incompetent due to conduct or conditions seriously detrimental to the child. The state then seeks safe, permanent homes for those children. In contrast, Planned Parenthood’s approach seeks no such balance. In effect, it advances an unbalanced view that in order to achieve a preferred family composition it is permissible to end the life of one child in favor of parenting another child either born or not yet conceived.
The state cannot dictate the details of family life in an effort to maximize protection of unborn and other vulnerable children. Utah law attempts the minimal, preventing parents from harming or killing their children.
In contrast, Planned Parenthood of Utah urges the state’s courts to reinstate Roe’s abortion policy by finding an unenumerated natural parental or familial right under the Utah Constitution for mothers to end the lives of their unwanted unborn children — essentially treating them like chattel in the guise of a right to parent or a right to family formation. As Dobbs demonstrated, however, a parental right to kill the unborn is not deeply rooted in our nation’s history. Abortion is not deeply rooted in Utah’s history, either.
In practical terms, the state is limited in its ability to protect the child before birth and in its ability to protect the mother’s health. However, Utah’s abortion law is a step in the right direction because it values the lives of mothers and children and seeks to protect both — a goal consistent with family law principles deeply embedded in the history of our state and our nation.
Camille S. Williams is an attorney practicing in Provo who has published articles related to women’s and family issues. The views expressed are her own.