This opinion is subject to revision before final
publication in the Pacific Reporter
2024 UT 28
IN THE
SUPREME COURT OF THE STATE OF UTAH
PLANNED PARENTHOOD ASSOCIATION OF UTAH, on behalf of itself
and its patients, physicians, and staff,
Appellee,
v.
STATE OF UTAH, GOVERNOR SPENCER J. COX, in his official capacity,
ATTORNEY GENERAL SEAN D. REYES, in his official capacity, and
MARK B. STEINAGEL, 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: *
__________________________________________________________
* 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 . . .)
PPAU v. UTAH
Opinion of the Court
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
ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the
Court, in which JUSTICE PETERSEN, JUSTICE HAGEN, and
JUSTICE POHLMAN joined.
CHIEF JUSTICE DURRANT filed a dissenting opinion.
ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 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.
¶2 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.
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Opinion of the Court
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.
¶4 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.
¶5 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
¶6 Two years before the United States Supreme Court
overturned Roe v. Wade, 410 U.S. 113 (1973), the Utah Legislature
enacted SB 174. 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
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Opinion of the Court
prohibited abortion1 at any point during a pregnancy, with three
exceptions. 2
¶7 SB 174 provides that any person who performs an
unauthorized abortion “is guilty of a second degree felony,” which
carries the risk of monetary fines and up to fifteen years in prison.
See UTAH CODE §§ 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).
¶8 The Legislature understood that SB 174 would violate the
United States Constitution at the time of its enactment. To address
__________________________________________________________
1 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.” UTAH CODE § 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.
2 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. UTAH CODE § 76-7a-201.
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Opinion of the Court
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.
¶9 The United States Supreme Court thereafter issued Dobbs
v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), which
overruled its decisions in Roe v. Wade,
410 U.S. 113 (1973), and
Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833
(1992). The same day the decision issued, the legislative general
counsel certified that SB 174 could become effective, informing the
Legislative Management Committee that “[b]ecause the United
States Supreme Court is a court of binding authority, and because
its majority opinion authorizes a state to prohibit the abortion of an
unborn child at any time during the gestational period, the
contingency required by the Legislature in S.B. 174 has been met.”
¶10 PPAU filed a complaint challenging SB 174 the following
day. PPAU alleged that SB 174 violates several provisions of the
Utah Constitution:
• 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.
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¶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.
¶12 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,
253 P.3d 1120.) According to PPAU, that injury includes
economic harm as well as the threat of criminal prosecution and
license revocation. PPAU also claimed it qualifies for third-party
standing and can assert the rights of its patients.
¶13 As for the merits of its motion, PPAU argued that it could
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.”
UTAH R. CIV. P. 65A(e) (2014).
¶14 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. 3
__________________________________________________________
3 The six claims are:
(1) A “bodily integrity” claim based on the Due Process Clause.
See UTAH CONST. art. I, § 7.
(continued . . .)
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Opinion of the Court
¶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 “timesensitive 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, 594 F.3d 742, 771 (10th Cir. 2010).) PPAU
also questioned the extent to which SB 174 would further the State’s
expressed interest in preserving life, noting that “Utah already bans
nearly all abortions after viability.”
¶17 PPAU asserted that an injunction would not be adverse to
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.”
¶18 PPAU supported its motion for a preliminary injunction
with several declarations.
¶19 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.
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Opinion of the Court
Dr. Turok emphasized that this last option “may in some cases be
unsafe.”
¶20 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 OBSTETRICS & GYNECOLOGY 961, 963 (2011);
and then citing F. Carol Bruce et al., Maternal Morbidity Rates in a
Managed Care Population, 111 OBSTETRICS & GYNECOLOGY 1089, 1092
(2008).)
¶21 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
NAT’L P’SHIP FOR WOMEN & FAMS., BY THE NUMBERS: WOMEN
CONTINUE TO FACE PREGNANCY DISCRIMINATION IN THE WORKPLACE
1–2 (2016); and then citing Jennifer Bennett Shinall, The Pregnancy
Penalty, 103 MINN. L. REV. 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.”
¶22 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.”
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Opinion of the Court
¶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 AM. J. PUB. HEALTH
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).)
¶24 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.”
¶25 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.
¶26 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
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Opinion of the Court
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.
¶27 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., GUTTMACHER INST., Abortion Incidence and
Service Availability in the United States 2017, 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., TEX. POL’Y EVALUATION
PROJECT, Knowledge, Opinion and Experience Related to Abortion SelfInduction in Texas 3 (2015).)
¶28 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
OBSTETRICS & GYNECOLOGY 215, 216 (2012).)
¶29 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
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Opinion of the Court
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 AM. COLL. OF OBSTETRICIANS & GYNECOLOGISTS,
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 AM. MED. ASS’N, Opinion 1.1.3 –
Patient Rights, in CODE OF MEDICAL ETHICS (2016).)
¶31 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.”
¶32 The State opted not to introduce any evidence of its own
in response to PPAU’s. 4 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.
¶33 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
__________________________________________________________
4 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.
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Opinion of the Court
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.
¶36 The court granted PPAU’s motion and issued a
preliminary injunction enjoining the enforcement of SB 174
pending the final resolution of the case.
¶37 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.”
¶38 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
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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.
¶40 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.
¶41 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
¶42 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
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Opinion of the Court
application of a legal standard to a particularized set of facts.”
Hinkle v. Jacobsen, 2019 UT 72, ¶ 18,
456 P.3d 738 (cleaned up). We
defer to the district court’s factual determinations but give
“minimal discretion to . . . determinations of whether a given set of
facts fits the legal requirements for standing.”
Id. (cleaned up).
¶43 The State next contends that the district court abused its
discretion when it granted PPAU’s request for a preliminary
injunction. The decision to grant or refuse an injunction based on a
court’s consideration of the evidence presented “rests within the
discretion of the [district] court.” Hunsaker v. Kersh, 1999 UT 106,
¶ 6,
991 P.2d 67. We review the district court’s decision to grant a
preliminary injunction for an abuse of discretion. See Osguthorpe v.
ASC Utah, Inc.,
2015 UT 89, ¶ 37,
365 P.3d 1201. We will not set aside
a district court’s conclusion unless it is “so lacking in support as to
be against the clear weight of the evidence.” Chen v. Stewart,
2004
UT 82, ¶ 19,
100 P.3d 1177 (cleaned up), abrogated on other grounds
by State v. Nielsen,
2014 UT 10,
326 P.3d 645.
¶44 “When district courts have discretion to weigh factors, . . .
[or] balance competing interests, . . . those discretionary
determinations must rest upon sound legal principles.” State v.
Boyden,
2019 UT 11, ¶ 21,
441 P.3d 737. “Misapplication of the law
constitutes an abuse of discretion.” Id. ¶ 19. When “a legal
conclusion is embedded in a district court’s discretionary
determination, we peel back the abuse of discretion standard and
look to make sure that the court applied the correct law.” Id. ¶ 21.
We yield no deference to a district court’s legal determinations,
reviewing them for correctness. Osguthorpe,
2015 UT 89, ¶¶ 36–37.
ANALYSIS
I. PPAU HAS STANDING TO CHALLENGE SB 174’s
CONSTITUTIONALITY
¶45 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.’” 836 P.2d 786, 789
(Utah 1992) (quoting Warth v. Seldin,
422 U.S. 490, 499 (1975)).
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¶46 Our standing requirements act as a “gatekeeper to the
courthouse . . . ensur[ing] that courts confine themselves to the
resolution of those disputes most effectively resolved through the
judicial process.” Utah Chapter of the Sierra Club v. Utah Air Quality
Bd., 2006 UT 74, ¶ 17,
148 P.3d 960 (cleaned up). Standing helps the
system ensure that a would-be litigant has “the incentive to fully
develop all the material factual and legal issues” by showing “a real
and personal interest in the dispute.” Id. ¶ 20 (cleaned up).
¶47 A party generally establishes standing by satisfying the
requirements of a “traditional standing test.” 5 Id. ¶¶ 19–20. Even
though the Utah constitution contains no case or controversy
clause, this court has adopted a standing test that imposes the same
Article III standing requirements the federal courts have used. 6
__________________________________________________________
5 Our “traditional standing” requirements mimic those imposed
by the United States Supreme Court’s interpretation of the federal
constitution. Those federal cases may not have much to tell us
about standing under the Utah Constitution because the Utah
Constitution omits Article III’s case or controversy requirement. See
Laws v. Grayeyes,
2021 UT 59, ¶¶ 77–102,
498 P.3d 410 (Pearce, J.,
concurring); In re Gestational Agreement,
2019 UT 40, ¶ 67,
449 P.3d
69 (Pearce, J., concurring) (“[L]ike numerous other states, we are
mindful that our constitution does not impose the same restrictions
on our judicial power that the federal constitution imposes on
federal courts.” (cleaned up) (citing Gregory v. Shurtleff,
2013 UT 18,
¶ 16,
299 P.3d 1098)); see also Jenkins v. Swan,
675 P.2d 1145, 1149
(Utah 1983) (“[T]he judicial power of the state of Utah is not
constitutionally restricted by the language of Article III of the
United States Constitution.”).
6 The dissent asserts that since “our state’s founding, we have
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.
54 P. 975 (Utah 1898). Welsh held that a
party could not appeal an order that was not final, and we noted
that the respondents challenged “the standing of the appellant in
this court.” Id. at 975.
The “traditional” test for standing that we discuss in this
opinion is a creature of United States Supreme Court jurisprudence
(continued . . .)
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Opinion of the Court
Compare id. ¶ 19, with Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61
(1992). 7
¶48 In addition to the Article III strictures, we have also
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,
422 U.S. at 499). In other words, a plaintiff
asserting the rights of third parties must usually satisfy the
traditional standing requirements and separately meet the
requirements for third-party standing. Id.; see also Warth,
422 U.S. at
499.
¶49 To have traditional standing, a party must show “some
distinct and palpable injury that gives him a personal stake in the
outcome of the legal dispute.” Jenkins v. Swan, 675 P.2d 1145, 1148
(Utah 1983). This involves a “three-step inquiry.” Sierra Club,
2006
UT 74, ¶ 19. “First, the party must assert that it has been or will be
adversely affected by the challenged actions.”
Id. (cleaned up).
“Second, the party must allege a causal relationship between the
injury to the party, the challenged actions and the relief requested.”
__________________________________________________________
that began to take form a couple of decades after we decided Welsh.
See William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221,
224–25 (1988). What we have since referred to as the “traditional”
standing requirements of a particularized injury and adversariness
did not enter our jurisprudence until the mid-20th century. See
Grayeyes,
2021 UT 59, ¶¶ 88–89 (Pearce, J., concurring) (citing Lyon
v. Bateman,
228 P.2d 818, 820 (Utah 1951)); In re Gestational
Agreement,
2019 UT 40, ¶ 60 (Pearce, J., concurring) (citing Citizens’
Club v. Welling,
27 P.2d 23, 23, 26 (Utah 1933)).
7 If a party fails to satisfy the traditional test, standing can also
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.,
2006 UT 74, ¶ 21,
148 P.3d 960 (“An association . . . has standing
if its individual members have standing and the participation of the
individual members is not necessary to the resolution of the case.”).
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Opinion of the Court
Id. (cleaned up). “Third, the relief requested must be substantially
likely to redress the injury claimed.”
Id. (cleaned up).
¶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.”
¶51 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.
¶52 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 UTAH CODE § 76-7a-201(4)–(6); cf. Brown v. Div. of
Water Rts. of the Dep’t of Nat. Res., 2010 UT 14, ¶ 19,
228 P.3d 747
(“[A] plaintiff seeking standing on the basis of a claim of future
injury must, at a minimum, set forth allegations establishing that a
reasonable probability, as opposed to a mere possibility, of future
injury exists.”). PPAU additionally demonstrated the probability of
reputational harm arising from the impact of SB 174 on PPAU’s
ethical obligations as a medical provider.
¶53 PPAU also presented evidence of economic harm. PPAU
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,
2006 UT 74, ¶¶ 22–23 (finding that “adverse[] impact [to plaintiff’s]
livelihoods” satisfied the first standing requirement). In sum,
SB 174 regulates PPAU, and the threatened injuries are more than
sufficient to demonstrate an individualized injury for traditional
standing. See Jenkins,
675 P.2d at 1151 (a party who “is or is likely
to be subject to prosecution” may show a “personal adverse
impact” that could satisfy the traditional test for standing).
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Opinion of the Court
¶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 UTAH CODE § 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, 429 U.S. 190,
194 (1976) (cleaned up). PPAU moreover established that
suspending SB 174’s enforcement would redress those injuries.
Because PPAU has shown individualized injury that can be
remedied by enjoining SB 174, it satisfies the traditional test for
standing.
¶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.
¶56 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,
836 P.2d at 789; see
also Warth,
422 U.S. at 499.
¶57 The State argues that PPAU lacks standing to assert its
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, 836 P.2d at 789.) And in the State’s view, “women affected
by SB 174 have ‘never been precluded from asserting’ their own . . .
rights.” (Quoting id.)
¶58 Federal courts recognize a general rule that “[o]rdinarily,
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.
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Opinion of the Court
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
¶59 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,
422 U.S. at 499). We then noted an exception to that rule if
“certain factors are met”: (1) “the presence of some substantial
relationship between the claimant and the third parties;” (2) “the
impossibility of the rightholders asserting their own constitutional
rights;” and (3) “the need to avoid a dilution of third parties’
constitutional rights.”
Id. (quoting Note, Standing to Assert
__________________________________________________________
8 The United States Supreme Court has explained that there are
two justifications for this prudential limitation on third-party
standing: (1) “courts should not adjudicate such rights
unnecessarily, and it may be that in fact the holders of those rights
either do not wish to assert them, or will be able to enjoy them
regardless of whether the in-court litigant is successful or not”; and
(2) “third parties themselves usually will be the best proponents of
their own rights.” Singleton, 428 U.S. at 113–14.
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.
9 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, 428 U.S. at 113–16); Kowalski v.
Tesmer,
543 U.S. 125, 129–30 (2004) (citing Powers,
499 U.S. at 411).
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Opinion of the Court
Constitutional Jus Tertii, 88 HARV. L. REV. 423, 425 (1974)). 10 We took
this language from a student note published in the Harvard Law
Review that listed “a variety of factors . . . none of which is of
controlling significance” that “seem to recur” in third-party
standing claims at the United States Supreme Court. Standing to
Assert Constitutional Jus Tertii, supra, at 425. 11
¶60 This case is our first opportunity to apply this part of
Shelledy. As an initial matter, it is unclear whether, when Shelledy
talked about “certain factors” being met, we created a three-factor
test. It may be that we were simply following the lead of the law
review article we cited, which described them as factors that “seem
to recur” in cases where federal courts recognize third-party
standing. Shelledy itself summarily analyzed whether the plaintiff
could show any of the three factors, an unnecessary exercise if the
Shelledy plaintiff needed to demonstrate all three to prevail.
Because PPAU can meet all three, we will act as if that is what
Shelledy requires. But we emphasize that this should not preclude
some future party from arguing that Shelledy describes general
considerations and not a hard and fast test.
¶61 Under the first prong, the party seeking to assert
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,
428 U.S. at 115.
¶62 The United States Supreme Court has explained that a
professional relationship can meet this test. See Griswold v.
__________________________________________________________
10 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,
2002 UT 58, ¶ 10,
52
P.3d 1158.
11 We also cited generally to a Columbia Law Review article and
a section of a constitutional law textbook discussing federal third-party standing. See Shelledy,
836 P.2d at 789 (first citing Henry P.
Monaghan, Third Party Standing, 84 COLUM. L. REV. 277 (1984); and
then citing LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW
§ 3-19 (2d ed. 1988)).
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Opinion of the Court
Connecticut, 381 U.S. 479, 481 (1965). In Griswold, the plaintiffs, the
Executive Director of the Planned Parenthood League of
Connecticut, and a physician who served as the League’s medical
director, sought to invalidate a Connecticut law prohibiting the use
of contraceptives.
Id. at 480–81. They argued that the law violated
their patients’ constitutional rights.
Id. The Court determined that
they had standing to assert the rights of their patients in part
because of the professional and confidential nature of their
relationship.
Id. at 481.
¶63 In Singleton, the Court held that “[t]he closeness of the
relationship is patent” between a physician and a woman seeking
an abortion. 428 U.S. at 117. In that case, two physicians challenged
a Missouri statute that prohibited the use of Medicaid benefits to
obtain an abortion unless the abortion was “medically indicated.”
Id. at 108–09. In their complaint, plaintiffs raised claims based on
their own rights, but they also asserted the rights of their patients.
Id. at 110. The Court explained that a “woman cannot safely secure
an abortion without the aid of a physician” and that the abortion
decision “is one in which the physician is intimately involved.”
Id.
at 117. Because of this close relationship, the Court concluded that
aside “from the woman herself . . . the physician is uniquely
qualified to litigate the constitutionality of the State’s interference
with” an abortion decision.
Id.
¶64 A sufficiently close relationship may also exist where the
plaintiff serves as an advocate for the third party’s rights. See
Eisenstadt v. Baird, 405 U.S. 438, 445–46 (1972). In Eisenstadt, Baird
was convicted under a Massachusetts law that criminalized
providing contraceptives in certain circumstances.
Id. at 440–41.
Baird challenged his conviction, arguing that the Massachusetts
prohibition on contraception “violate[d] the rights of single persons
under the Equal Protection Clause of the Fourteenth Amendment.”
Id. at 443. The Court held that Baird had standing to bring these
claims even in “the absence of a professional . . . relationship.”
Id.
at 445–46. It explained that third-party standing was appropriate
because “the relationship between Baird and those whose rights he
seeks to assert is . . . that between an advocate of the rights of
persons to obtain contraceptives and those desirous of doing so.”
Id. at 445.
¶65 PPAU has a relationship with its patients that resembles
the relationships in Griswold and Eisenstadt. See Griswold,
381 U.S.
21
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Opinion of the Court
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
AM. MED. ASS’N, Opinion 1.1.1 – Patient-Physician Relationships, in
CODE OF MEDICAL ETHICS (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, 429 U.S. at 194 (cleaned up).
¶68 Under the second prong, we consider “the impossibility of
the rightholders asserting their own constitutional rights.” Shelledy,
836 P.2d at 789 (cleaned up). Our analysis of this prong in Shelledy
was limited to a statement that “the [third party] ha[d] never been
precluded from asserting its [rights].”
Id.
¶69 The State argues that PPAU cannot establish this second
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.
¶70 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
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Opinion of the Court
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. 12
¶71 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
__________________________________________________________
12 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, 2021 UT 47, ¶¶ 19–
20, 28,
496 P.3d 95 (modifying the duty to warn standard we
adopted in House v. Armour of America, Inc.,
929 P.2d 340 (Utah
1996)); Wash. Cnty Sch. Dist. v. Lab. Comm’n,
2015 UT 78, ¶ 3,
358
P.3d 1091 (clarifying the “direct and natural results test” we
adopted in Mountain States Casing Servs. v. McKean,
706 P.2d 601,
602 (Utah 1985)). We also note that in this case, the parties briefed
the question of how we should interpret Shelledy; no party
suggested that interpreting the word impossibility would require
us to overturn the case.
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Opinion of the Court
“impossibility.” 13 Standing to Assert Constitutional Jus Tertii, supra
¶ 59, at 425 n.16 (first citing Eisenstadt, 405 U.S. at 446; then citing
NAACP v. Alabama ex rel. Patterson,
357 U.S. 449, 459 (1958); and
then citing Bantam Books, Inc. v. Sullivan,
372 U.S. 58, 64 n.6, 65–66
(1963) (dictum)). Upon closer inspection, it appears that the note
engaged in a bit of hyperbole when it described one of the
considerations as “impossibility.”
¶72 The United States Supreme Court has explicitly rejected
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
__________________________________________________________
13 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,
836 P.2d at 789. As described above, the federal cases from which
we borrowed the doctrine, including those the note Shelledy relies
on describes, do not speak in terms of literal impossibility. And,
perhaps most tellingly, our test for public interest standing does
not require that a plaintiff show that it is impossible for someone
else to bring the claim. We instead require that a would-be public
interest plaintiff show that “the issue is unlikely to be raised at all if
the plaintiff is denied standing.” Jenkins,
675 P.2d at 1150 (emphasis
added).
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.
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Opinion of the Court
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,
357 U.S. at 459; then
citing Eisenstadt,
405 U.S. at 446; and then citing Barrows,
346 U.S. at
259). The plurality also explicitly rejected the argument that the
Court’s “prior cases allow assertion of third party rights only when
such assertion by the third parties themselves would be in all
practicable terms impossible.”
Id. at 116 n.6 (cleaned up). It pointed
out that the Court has found standing when a plaintiff asserts a
third party’s right to be protected from compelled disclosure even
though the third party “could have obtained [relief], suing
anonymously by the use of pseudonyms.” Id.; see also Patterson, 357
U.S. at 458–59.
¶73 In Singleton, the Court discussed several obstacles that
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.” 428 U.S. at 117. It next considered “the imminent mootness
. . . of any individual woman’s claim,” explaining that after a few
months, “her right . . . will have been irrevocably lost.”
Id. The
Court noted “that these obstacles are not insurmountable” because
a woman could sue under a pseudonym or assemble a class to bring
the suit.
Id. The Court nevertheless held that there was a sufficient
obstacle to justify third-party standing.
Id. The Court concluded its
decision by explaining that “there seems little loss in terms of
effective advocacy from allowing . . . a physician” to assert its
patients’ rights.
Id.
¶74 PPAU provided the district court with declarations from
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. 14 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
__________________________________________________________
14 Because the district court allowed for these declarations to be
submitted under pseudonyms for anonymity, we refer to the
declarants similarly.
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Opinion of the Court
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.
¶77 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. 836 P.2d at 789
(cleaned up). As the Harvard note explained, “[t]he risk of dilution
of the constitutional rights of third parties is . . . a general problem
recurring in all cases involving claims of [third-party standing].”
Standing to Assert Constitutional Jus Tertii, supra ¶ 59, at 425 n.17.
And this risk becomes more apparent in particular circumstances.
¶78 For example, in Craig v. Boren, 429 U.S. 190 (1976), the
United States Supreme Court considered a challenge to an
Oklahoma law “prohibit[ing] the sale of nonintoxicating 3.2% beer
to males under the age of 21 and to females under the age of 18.”
Id. at 192 (cleaned up). Appellant, a vendor of 3.2% beer, argued
that the law denied 18- to 20-year-old males equal protection of the
law in violation of the Fourteenth Amendment.
Id.
¶79 The Court determined that the vendor had standing to
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
26
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Opinion of the Court
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
UTAH CODE § 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.
¶81 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
¶82 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.” UTAH R. CIV. P. 65A(e) (2014).
¶83 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.
27
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Opinion of the Court
A. The District Court Correctly Determined that PPAU Presented
Serious Issues on the Merits that Should Be the Subject of
Further Litigation
¶84 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
¶85 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
__________________________________________________________
15 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.
16 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 . . .)
28
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Opinion of the Court
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.,
972 P.2d 411, 413 (Utah 1998).
¶86 The State wrestles with this lack of caselaw and argues that
although the serious issues standard likely requires less than the
“substantial likelihood of success on the merits” standard, it
requires more than reasonable opposing arguments about the
constitutionality of a law. Since we borrowed the preliminary
injunction standards from the Tenth Circuit, we look to Tenth
Circuit caselaw for guidance. 17
__________________________________________________________
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.
UTAH R. CIV. P. 65A(e) (1990).
17 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.,
555 U.S. 7 (2008). In Winter, the Court overruled the
Ninth Circuit’s application of a modified preliminary injunction
test under which plaintiffs who demonstrated a strong likelihood
of prevailing on the merits could receive a preliminary injunction
based only on a possibility, rather than a likelihood, of irreparable
harm.
Id. at 22. Because the Tenth Circuit interpreted Winter as
(continued . . .)
29
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Opinion of the Court
¶87 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.,
805 F.2d 351, 359 (10th Cir. 1986).
¶88 In all, the State is correct that the serious issues standard
requires less than the “substantial likelihood of success” standard.
Using the Tenth Circuit’s definitions, a preliminary injunction
applicant that raises questions “going to the merits that are serious,
substantial, difficult and doubtful” establishes “fair grounds for
[further] litigation,” which makes the “resolution of the final
question of law a genuinely debatable issue.”
Id. at 359.
¶89 The State claims that, even under the now-extinct, more
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. 18 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.,
338 F.2d 780, 782 (10th
Cir. 1964) (citing Hamilton Watch Co. v. Benrus Watch Co., 2 Cir.,
206
F.2d 738, 740); see also Citigroup Glob. Mkts., Inc. v. VCG Special
Opportunities Master Fund Ltd.,
598 F.3d 30, 38 (2d Cir. 2010) (“We
have found no command from the Supreme Court that would
foreclose the application of our established ‘serious questions’
standard as a means of assessing a movant’s likelihood of success
on the merits.”). For all future cases in Utah, the dispute is now
academic because the Legislature amended rule 65A to eliminate
the serious issues portion of the rule.
18 In addition to these arguments, the State levies criticisms
about some of the district court’s conclusions concerning certain
(continued . . .)
30
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Opinion of the Court
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, 597 U.S. 215
(2022). Finally, the State contends that Dobbs’s holding—that the
due process clause of the Fourteenth Amendment fails to confer a
right to choose to have an abortion—means that Utah’s due process
clause cannot provide such a right. 19
1. The Utah Constitution Recognizes and Protects
Unenumerated Rights
¶90 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.
19 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.
31
PPAU v. UTAH
Opinion of the Court
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.
¶91 The Utah Constitution makes plain that not all rights it
protects are enumerated. See, e.g., UTAH CONST. 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). 20
¶92 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.,
2014 UT 51, ¶ 22,
358
P.3d 1009.
¶93 We have read these constitutional provisions not as hollow
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.” 2011 UT 17, ¶ 73,
250 P.3d
465. We further explained that “this general right necessarily
encompasses the more specific right to make decisions regarding
the child’s medical care.”
Id. Stated differently, even though the
__________________________________________________________
20 Constitutional protection for unenumerated natural rights is
not unique to Utah. By 1868, “approximately 67% of all Americans
then living resided in states that constitutionally protected
unenumerated individual liberty rights.” Steven G. Calabresi &
Sofía M. Vickery, On Liberty and the Fourteenth Amendment: The
Original Understanding of the Lockean Natural Rights Guarantees, 93
TEX. L. REV. 1299, 1303 (2015). Indeed, twenty-four of the thirty-seven then-existing states had such provisions in their
constitutions.
Id.
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Opinion of the Court
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.
¶94 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). 21
¶95 That the Utah Constitution protects certain unenumerated
rights makes quick work of the State’s first argument. It isn’t
__________________________________________________________
21 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
man is free.” John Locke, An Essay Concerning Human
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.
33
PPAU v. UTAH
Opinion of the Court
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.
¶96 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, 2019 UT 58, ¶ 19
n.6,
450 P.3d 1092. “Evidence of [the] framers’ intent can inform our
understanding of the text’s meaning, but it is only a means to this
end, not an end in itself.”
Id. The absence of convention discussion
does not doom a claim that the Utah Constitution protects an
unenumerated right.
¶97 In fairness to the State, while we have recognized rights
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
¶98 In re J.P. is illustrative on this point. See
648 P.2d at 1373,
1375. That case is perhaps the most complete explanation we have
given of how we know an unenumerated right exists. In In re J.P.,
__________________________________________________________
22 For the purpose of addressing the State’s argument, we accept
its framing. But we emphasize 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.”
23 We have also been less than clear about when a right is an
unenumerated right that article I, section 25 references and when it
is a due process right recognized under article I, section 7.
34
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Opinion of the Court
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
best interest. Id. at 1366. The mother challenged 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. 24 Id.
(cleaned up).
¶99 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.
¶100 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., 648 P.2d at 1372 (quoting
UTAH CONST. art. I, § 27). We explained that a “residuum of liberty
reposes in the people” and “[t]hat liberty is not limited to the
exercise of rights specifically enumerated in either the United States
or the Utah Constitutions.” Id. We buttressed this conclusion with
a reference to article I, section 25’s declaration that the state
constitution’s “enumeration of rights shall not be construed to
impair or deny others retained by the people.” Id.
¶101 Important to the argument the State raises here, In re J.P.
did not reference any discussion from the Utah Constitutional
__________________________________________________________
24 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.”
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Opinion of the Court
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 577 P.2d 119, 124 (Utah 1978)).
¶102 We next looked to the United States Supreme Court’s
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
434 U.S. 246, 255 (1978)).
¶103 We concluded that the “rights inherent in family
relationships—husband-wife, parent-child, and sibling—are the
most obvious examples of rights retained by the people. They are
natural, intrinsic, or prior in the sense that our Constitutions
presuppose them, as they presuppose the right to own and dispose
of property.” Id. at 1373 (cleaned up). 27
¶104 Among the cases we cited for support was Loving v.
Virginia, 388 U.S. 1 (1967). We relied on Loving for the proposition
__________________________________________________________
25 The In re Walter B. court cited no authority and provided no
analysis to explain how it reached this conclusion.
26 In Quilloin, the Court followed this statement with citations to
Wisconsin v. Yoder,
406 U.S. 205, 231–33 (1972), Stanley v. Illinois,
405
U.S. 645 (1972), and Meyer v. Nebraska,
262 U.S. 390, 399–401 (1923).
See
434 U.S. at 255.
27 In re J.P.’s statement notwithstanding, our state constitution
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.”
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Opinion of the Court
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., 648 P.2d at 1373 (quoting
388 U.S. at 12).28
We quoted Skinner v. Oklahoma ex rel. Williamson for the proposition
that “the right to procreate [is] among the ‘basic civil rights of
man.’”
Id. (quoting
316 U.S. 535, 541 (1942)). This authority sufficed
for us to conclude that the “integrity of the family and the parents’
inherent right and authority to rear their own children have been
recognized as fundamental axioms of Anglo-American culture,
presupposed by all our social, political, and legal institutions.” 29
Id.
¶105 We then applied the principle that “parents[] [have an]
inherent right and authority to rear their own children,” to the
termination statute. Id. We framed the inquiry using the language
of due process.
Id. at 1375–76. We announced that our decision
relied on the fact that the rights the termination statute infringed
were 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.’” Id. at 1375
(cleaned up). Although we talked about parental rights in due
process terms, we also noted that “the right of a parent not to be
deprived of parental rights without a showing of unfitness . . . is so
fundamental to our society . . . that it ranks among those rights
referred to in Article I, [section] 25 of the Utah Constitution . . . as
being retained by the people.” Id.
__________________________________________________________
28 The Loving court elaborated that to deny the fundamental
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.”
388 U.S. at 12.
29 In re J.P. also quoted the United States Supreme Court’s
declaration that “the liberty interest in family privacy has its source
. . . in intrinsic human rights . . . .”
648 P.2d at 1373 (quoting Smith
v. Org. of Foster Fams. for Equal. & Reform,
431 U.S. 816, 845 (1977)).
We further noted this court has repeatedly characterized a parent’s
right and obligation to a child as natural or prior. See
id. at 1373–74
(first citing Mill v. Brown,
88 P. 609, 613 (Utah 1907); then citing In
re Jennings,
432 P.2d 879, 880 (Utah 1967); and then citing In re
Castillo,
632 P.2d 855, 856 (Utah 1981)).
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Opinion of the Court
¶106 We further stated that “[t]his recognition of the due process
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.
¶107 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).
¶108 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. 30 See
generally id. at 1374–77. In re J.P. found that sufficiently persuasive.
__________________________________________________________
30 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 WILLIAM BLACKSTONE,
COMMENTARIES *452–53. In his commentaries on American law,
Kent described parents enjoying similar rights over their children.
2 JAMES KENT, COMMENTARIES *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.” WALTER C. TIFFANY, THE LAW OF PERSONS AND
DOMESTIC RELATIONS 268–70 (2d ed. 1909).
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¶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.
¶110 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
¶111 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.
¶112 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
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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).
¶113 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.
¶114 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., 2014 UT 51, ¶ 57,
358 P.3d 1009 (plurality opinion)). The dissent
contended that the mother needed to show “more than just a
tradition of respecting parental rights generally,” but instead “a
tradition of protecting parental rights despite a procedural
default.” Id. ¶ 152.
¶115 The court rejected this assertion, in part, because our
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. 31 Id. ¶ 63 (emphasis omitted).
__________________________________________________________
31 To be sure, In re K.T.B. recognized that “the level of generality
at which an asserted right is framed may be an outcomedeterminative issue in some cases.”
2020 UT 51, ¶ 69. Ultimately In
re K.T.B. did not need to grapple with the level of generality
question because the scope of the constitutional right at issue there
had already been defined and defined broadly.
Id. ¶¶ 70–73.
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¶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,
416 P.3d 663. This means that sometimes the right
will be stated broadly because that articulation reflects the public
understanding when Utah voters approved the constitution.
¶117 For example, In re J.P. identified the rights at play broadly.
There, we did not ask whether history and tradition recognized
that the government must show unfitness before terminating
parental rights. We asked whether the Utah Constitution would
have presupposed that parents enjoyed a right to raise their
children. 648 P.2d at 1373–76. And that led to the conclusion that
the parental rights termination statute violated that principle. Id. at
1377.
¶118 Similarly, when we held in Jensen ex rel. Jensen v.
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.”
2011 UT 17, ¶ 73,
250 P.3d 465. We did not require the Jensens to
show that the constitution guarantees a specific right for a parent
to direct his child’s medical care—it was enough that they
demonstrated a constitutional right to care for their children. See
id.
¶¶ 72–73. We then applied that principle to the specific question
the Jensens brought to court. See generally
id. ¶¶ 78–94.
¶119 As these cases demonstrate, our job is to define the
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.
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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 UTAH
COMPILED LAWS § 21-3-1972 (1876).)
¶122 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 UTAH REV. STAT.
§ 75-27-4226 to -4227 (1898).)
¶123 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
UTAH COMPILED LAWS § 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.”
¶124 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.
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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 32 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.)
¶125 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
¶126 To begin, the “Utah Constitution enshrines principles, not
application of those principles.” South Salt Lake City v. Maese, 2019
UT 58, ¶ 70 n.23,
450 P.3d 1092. In Maese, we looked at the historical
record to determine the scope of the constitutional right to a trial
by jury. We rejected the city’s arguments that “there is no right to a
jury trial on a vehicular offense because there were no automobile
offenses in the code at the time of statehood.”
Id. We said that such
an argument “is tantamount to saying that there can be no jury trial
in any case involving a computer crime because there were no
computers at the time of statehood. The proper inquiry focuses on
what principle the constitution encapsulates and how that
principle should apply.”
Id.
¶127 The State asserts that the fact that there were anti-abortion
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
__________________________________________________________
32 Quickening is when the mother can first feel the movement of
the fetus, “usually somewhat before the middle of the period of
gestation.” Quickening, MERRIAM- WEBSTER’S, https://www.merri
am-webster.com/medical/quickening (last visited July 19, 2024).
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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
__________________________________________________________
33 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,
140 P.3d 1235. American Bush asked this court to conclude that
article I, section 15 of the Utah Constitution—our First Amendment
analog—protects nude dancing. Id. ¶ 6. We reviewed the
constitution’s text, constitutional convention debate, the historical
roots of the constitutional language, and the history of state
freedom of speech provisions at the time of Utah’s statehood. See
generally id. ¶¶ 15–53. This caused us to conclude that “it was a
well-established and widely recognized principle of constitutional
law at the time of the drafting of the Utah Constitution that obscene
speech was not protected speech.” Id. ¶ 54. We then reasoned that
because the people at the time of statehood considered nude
dancing to be obscene, section 15 could not protect such expression.
Id. ¶ 57. This type of analysis impermissibly conflates a principle
with the application of that principle. The American Bush court
should have recognized that the Utah Constitution does not protect
obscene speech and then applied that principle to the conduct in
question. That is, it should have then analyzed whether the dancing
at issue in that case was obscene, not whether Utahns in 1895 would
have considered it to be obscene.
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, 2019 UT 58, ¶ 70
n.23. Moreover, American Bush was decided in an era when our
approach to constitutional interpretation was in flux. The year after
we decided American Bush, two of the three justices who constituted
the American Bush majority were part of a majority in another split
decision wherein they agreed with the proposition that “Historical
arguments may be persuasive in some cases, but they do not
represent a sine qua non in constitutional analysis.” State v.
Tiedemann,
2007 UT 49, ¶¶ 37, 56,
162 P.3d 1106.
34 “We don’t seek to understand what the constitutional
language meant at the time it entered the constitution because that
language is imbued with magic. We seek to understand the original
(continued . . .)
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Opinion of the Court
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.
¶128 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 UTAH COMPILED LAWS § 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. 35 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).
¶129 In 1963, the Legislature repealed the ban. See 1963 UTAH
LAWS 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,
2023 UT 20, ¶ 58,
537 P.3d 212.
35 It appears that Utah government officials applied interracial
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, SALT LAKE TRIB.,
Sept. 16, 1898, at 6; The License Was Refused – Colored Soldier’s
Attempt to Marry a Supposed White Woman, DESERET EVENING NEWS,
Oct. 26, 1899, at 4; Couple Fight Snow-Blocked Passes to Wed in Utah,
but Are Denied License, SALT LAKE TELEGRAM, 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.
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litigation and not by constitutional concerns. See Anthony Michael
Kreis, Marriage Demosprudence, 2016 U. ILL. L. REV. 1679, 1705 (2016).
¶130 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.
¶131 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. 36
¶132 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.
__________________________________________________________
36 Moreover, “even the first Legislature could have enacted an
unconstitutional law.” See Maese, 2019 UT 58, ¶ 46. To assume that
statehood-era abortion laws comply with the principles enshrined
in the constitution simply because they were enacted near the time
of statehood would be a dereliction of our constitutional duty to
interpret and uphold the constitution. See UTAH CONST. art. VIII, § 1
(“The judicial power of the state shall be vested in a Supreme Court
. . . .”); id. § 2 (requiring “the concurrence of a majority of all justices
of the Supreme Court” to declare a law unconstitutional).
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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, 2019 UT 58, ¶ 29. But often, “the historical
record is more like a Jackson Pollock,” and “we find ourselves
staring at the canvas in hopes of finding some unifying theme.”
Id.
¶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, 2018 UT 35, ¶ 82,
428 P.3d 1005 (cleaned up). We worry that if we rely on an
incomplete understanding of the founding era, we risk “converting
the historical record into a type of Rorschach test where we only
see what we are already inclined to see.”
Id. (cleaned up). The more
robust our understanding of the history, the better we are at
avoiding those traps.
¶135 This means that it is not enough to understand that Utah
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.
¶136 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.
¶137 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 UTAH REV. STAT. § 75-27-4226
(1898).) The State also asserts that the code criminalized women
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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. 51 P. 1091 (Utah 1898).
¶138 The State charged Joseph Crook with “procuring an
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 UTAH COMPILED LAWS § 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.37
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.
¶139 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
__________________________________________________________
37 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.”
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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.
¶140 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, THE CENTURY DICTIONARY: AN ENCYCLOPEDIC LEXICON OF
THE ENGLISH LANGUAGE 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
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Opinion of the Court
believed that the Utah law outlawing abortion banned any action
to end a pregnancy at any time during the pregnancy. 38
¶141 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.
¶142 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 HendrixKomoto, The Other Crime: Abortion and Contraception in
Nineteenth- and Twentieth-Century Utah, DIALOGUE: J. MORMON
THOUGHT, 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.” HANNAH SORENSEN, WHAT
__________________________________________________________
38 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, SALT LAKE
HERALD-REPUBLICAN, Nov. 22, 1896, at 4; Three Long Words, OGDEN
DAILY STANDARD 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 BUFF. L. REV. 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. ANTONIN SCALIA & BRYAN A. GARNER,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS 422 app. (2012).
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WOMEN SHOULD KNOW 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, 27 N.J.L. 112, 114 (Sup. Ct.
1858) (“At the common law, the procuring of an abortion, or the
attempt to procure an abortion, by the mother herself, or by another
with her consent, was not indictable, unless the woman were quick
with child. The act was purged of its criminality, so far as it affected
the mother, by her consent. It was an offence only against the life
of the child.”); JAMES C. MOHR, ABORTION IN AMERICA: THE ORIGINS
AND EVOLUTION OF NATIONAL POLICY, 1800–1900, at 21–22 (1978)
(reporting that in 1821, Connecticut passed the first abortion law in
the United States and explicitly limited abortion prosecution to
only if a woman was “quick with child,” thus preserving “for
Connecticut women their long-standing common law right to
attempt to rid themselves of a suspected pregnancy they did not
want before the pregnancy confirmed itself”).
¶144 Sorensen’s book reveals that the definition of abortion the
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.
¶145 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 SEATTLE U. L. REV. 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.
¶146 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
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Opinion of the Court
to guard the health and life of the mother against the consequences
of such attempts.” 39 Murphy, 27 N.J.L. at 114.
¶147 The history of Connecticut’s nineteenth-century abortion
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 . . . .” MOHR, supra ¶ 143, at 21 (citing
22 CONN. PUB. STAT. § 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.
¶148 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 STAN. L. REV. 261, 300
__________________________________________________________
39 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, DESERET WEEKLY, 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, SALT LAKE TRIB., Sept. 27, 1895,
at 5 (coroner noting that “it is with extreme difficulty that
indictments under the laws relating to malpractice have been
sustained”).
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(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,
2017 UT 89, ¶ 100,
416 P.3d 663 (cleaned up).
¶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.
¶151 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
¶152 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.
¶153 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
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ratified. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 248–50
(2022). To interpret the Utah Constitution, we are required to
examine how the people of Utah at the time of statehood would
have understood the principles our founding document enshrined.
¶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 UTAH L. REV. 311 (1966). Nor
does Dobbs consider the Utah-specific evidence, a portion of which
we discuss above.
¶155 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.
¶156 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
¶157 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.
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¶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,
612 P.2d 348, 354 (Utah 1980).)
¶159 The district court determined that PPAU demonstrated
serious issues on the merits of whether SB 174 infringes a “right to
bodily integrity [protected] under article I, sections 1, 7, and 11 of
the Utah Constitution.” 40
¶160 The State contends that the district court erred because we
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., 648 P.2d 1364,
1375 (Utah 1982).) In other words, the State claims that we cannot
conclude an unenumerated or substantive due process right exists
unless the common law and history support such a conclusion.
And the State argues that the common law and history do not
support the existence of an implied fundamental right to bodily
integrity when “[r]ecast[] [as] abortion.” This argument is mostly a
rehash of the argument that we should define constitutional rights
narrowly. For the reasons discussed above, this is inconsistent with
how we have approached questions of constitutional
interpretation. See supra Part II.A.2.
¶161 We have recognized that the Utah Constitution
contemplates some protection for decisions regarding one’s own
body. See, e.g., Jensen ex rel. Jensen v. Cunningham,
2011 UT 17, ¶ 73,
250 P.3d 465; Nixdorf,
612 P.2d at 354. Jensen, for example, dealt with
__________________________________________________________
40 The court also cited Malan v. Lewis,
693 P.2d 661, 674 n.17
(Utah 1984) and Wood v. University of Utah Medical Center,
2002 UT
134,
67 P.3d 436, abrogated on other grounds by Waite v. Utah Lab.
Comm'n,
2017 UT 86,
416 P.3d 635.
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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.
¶162 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.
¶163 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 648 P.2d at 1373).
¶164 We noted that In re J.P.’s “holding[] do[es] not directly
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.
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¶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.
¶166 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.”
2011 UT 17, ¶ 73.
Second, we have not required parties to show precise historical
antecedents for the application of the constitutional principle to a
specific right. Third, the right to make medical decisions that Jensen
recognizes resembles the right to bodily integrity that PPAU
argued to the district court. 41
¶167 Jensen is not the only case that supports PPAU’s bodily
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, 636 P.2d 1085 (Utah 1981). In that case, a jury found that
Nelda Boyer was incapacitated because of her mental disability and
concluded that a guardian needed to be appointed for her.
Id. at
1086–87. On appeal, Boyer argued that decision deprived her of a
constitutionally guaranteed right to make certain personal
decisions.
Id. at 1087.
¶168 We resolved the case by analyzing whether the incapacity
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
__________________________________________________________
41 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.
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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.
¶169 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.
612 P.2d at 351. We held that the district court erred when it did not
submit to the jury the plaintiff’s cause of action concerning the
failure to disclose the presence of the needle because the plaintiff
had a “right to determine what shall or shall not be done with his
body.”
Id. at 354.
¶170 Nixdorf relied on cases from New York and Washington
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.
105 N.E. 92, 92–
93 (N.Y. 1914), abrogated on other grounds by Bing v. Thunig,
143
N.E.2d 3 (N.Y. 1957). The New York Court of Appeals declared
“Every human being of adult years and sound mind has a right to
determine what shall be done with his own body; and a surgeon
who performs an operation without his patient’s consent commits
an assault, for which he is liable in damages.”
Id. at 93. For this
declaration, Schloendorff cited Mohr v. Williams,
104 N.W. 12 (Minn.
1905), overruled on other grounds by Genzel v. Halvorson,
80 N.W.2d
854 (Minn. 1957). Mohr recognized that “[u]nder a free government,
at least, the free citizen’s first and greatest right, which underlies all
others [is] the right to the inviolability of his person” and that
control over one’s body “is the natural right of the individual, which
the law recognizes as a legal one.”
Id. at 14–15 (cleaned up) (emphasis
added).
¶171 Miller v. Kennedy was a medical malpractice case where
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,
530 P.2d 334 (Wash. 1975).
Miller concluded that
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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, 612 P.2d at 354 & n.19.
¶172 The State argues that Nixdorf is inapplicable because it
“did not interpret any constitutional provision” and merely
resolved a tort dispute. The State correctly asserts that Nixdorf did
not expressly interpret the Utah Constitution when it declared that
a person has a “right to determine what shall or shall not be done
with his body.” Id. at 354. But the language we used and the cases
we cited suggest a constitutional basis for the right to determine
what will be done with one’s body. At a minimum, Nixdorf,
together with Jensen and In re Boyer, raise a serious issue regarding
the existence of a right to bodily integrity and whether SB 174
infringes that right.
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
¶173 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).
¶174 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.
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Opinion of the Court
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.
¶175 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,
388 U.S. 1, 12 (1967); and then quoting
Skinner v. Oklahoma ex rel. Williamson,
316 U.S. 535, 541 (1942)). In re
J.P. also declared that individuals had a right to “establish a home
and bring up children.”
Id. at 1372 (quoting Meyer v. Nebraska,
262
U.S. 390, 399 (1923)). And we concluded that “[t]o protect the
individual in his constitutionally guaranteed right to form and
preserve the family is one of the basic principles for which
organized government is established.” Id. at 1373 (cleaned up)
(quoting Lacher v. Venus,
188 N.W. 613, 617 (Wis. 1922)).
¶176 The State first argues that though In re J.P. protects a
parent’s rights to “maintain and preserve [their] ties to their
children,” it cannot “support [PPAU’s] claimed right to prevent that
very parent-child relationship from existing in the first place.” The
State supports its assertion by claiming that the rights underlying
In re J.P.’s conclusion “presupposes parents with a living child” and
that “[a]bortion is inconsistent with that presupposition.” Even if
some of In re J.P.’s language could be used to argue that
presupposition exists, the rights that case recognized are bound
together by a basic principle: autonomy over decisions concerning
one’s family. That is, In re J.P. discussed, among other rights, the
right to marry the person of one’s choosing and the right to
establish a home. Id. at 1372. The commonality these rights share is
not a child, but the right to make certain intimate decisions about
one’s life free from government intrusion. At this point in the
litigation, we cannot say whether a restriction on the ability to
choose to have an abortion infringes the rights we recognized in In
re J.P., but there are serious questions regarding the scope of those
rights that merit further litigation.
¶177 The State next contends that In re J.P. “expressly rejected
the reasoning and conclusions of ‘substantive due process cases
like Roe.’” (Quoting 648 P.2d at 1375.) According to the State, any
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rights In re J.P. recognizes cannot include a right to choose to have
an abortion. The State further argues that because In re J.P. supports
its reasoning with United States Supreme Court Fourteenth
Amendment caselaw, and Dobbs “confirm[ed] there is no
Fourteenth Amendment right to abortion,” PPAU cannot avail
itself of any fundamental right In re J.P. discussed.
¶178 To be sure, the In re J.P. court distinguished its analytical
path from that in Roe v. Wade, 410 U.S. 113 (1973). We emphasized
that unlike the unenumerated right to privacy that Roe used to
“establish other rights unknown at common law,” our review of
the historical record showed that the parental right at issue in In re
J.P. was “fundamental to the existence of the institution of the
family, . . . deeply rooted in this Nation’s history and tradition, . . .
and in the history and culture of Western civilization.”
648 P.2d at
1375 (cleaned up). In re J.P. does not say that the Utah Constitution
could not include a right that would protect the ability to choose to
have an abortion; it instead noted that we believed that the path the
United States Supreme Court took to recognize a right to privacy
was suspect. In re J.P’s observation does not prevent PPAU from
attempting to convince the district court that the Utah Constitution
protects rights that SB 174 infringes.
¶179 In the end, the right PPAU argues the Utah Constitution
protects is rooted in the same soil as the principles that we
recognized in In re J.P. 42 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.
__________________________________________________________
42 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.
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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.” UTAH CONST. 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.”
¶181 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.”
¶182 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
¶183 The State argues that article IV, section 1 is nothing more
than a “voting-rights provision.” 44 The State contends that the
__________________________________________________________
43 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.
44 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 UTAH
(continued . . .)
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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, SALT
LAKE HERALD-REPUBLICAN, Mar. 29, 1895, at 3 (recounting that “the
suffrage question was the all-absorbing topic for debate” at the
convention the day before).)
¶184 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, 297 U.S. 1, 65
(1936) (declining to interpret language detailing Congress’s tax and
spending powers as surplusage because “[t]hese words cannot be
meaningless, else they would not have been used”); ANTONIN
SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF
LEGAL TEXTS 174 (2012). But when we interpret the constitution, we
don’t necessarily stop our analysis when the document’s plain
language suggests an answer. In South Salt Lake City v. Maese, we
explained that while
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
__________________________________________________________
CONST. 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.
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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. 45
¶185 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.”
¶186 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.
¶187 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 OFFICIAL REPORT OF THE PROCEEDINGS AND DEBATES OF THE
CONVENTION 467 (Star Printing Co. 1898 ed.) [hereinafter
CONVENTION DEBATES].
__________________________________________________________
45 We have noted that the meaning of language changes over
time. See, e.g., State v. Reyes,
2005 UT 33, ¶ 38 & n.3,
116 P.3d 305
(“history has proven that defining ‘beyond a reasonable doubt’ is a
process of evolution and adaptation,” and “instructions that once
enjoyed widespread acceptance [can] bec[o]me anachronistic and
inaccurate due to shifting definitions of terms”); State v. Gallegos,
2020 UT 19, ¶ 58,
463 P.3d 641 (“Language matters and, over time,
even small variations can take on lives of their own and distort the
analysis.”).
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¶188 A delegate supporting equal suffrage, but not equal rights
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.
¶189 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
__________________________________________________________
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.” WYO. CONST. 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 CONVENTION DEBATES, supra ¶ 187,
at 469, 540, 570, 587, 606.
(continued . . .)
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¶190 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
¶191 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.” CAL. CONST. 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
CAL. CONST. art. II, § 1 (1911).
Our framers did not expressly guarantee equal rights to people
of all races the way Wyoming did. CONVENTION DEBATES, 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.
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approval; and (5) the threat of criminal and licensing penalties,
reputational harm, and harm to the livelihoods of PPAU and its
staff.
¶192 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.)
¶193 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, 499 U.S. 400, 413–14 (1991); see also Utah Chapter of the Sierra
Club v. Utah Air Quality Bd.,
2006 UT 74, ¶ 42,
148 P.3d 960 (a party
with standing “has the interest necessary to effectively. . . develop[]
and review[] all relevant and legal factual questions” (cleaned up)).
¶194 In other words, a party who can properly assert
third-party standing is one of “the most effective advocates of” the
third party’s rights. Singleton v. Wulff, 428 U.S. 106, 114 (1976)
(plurality opinion). The close relationship necessary to assert third-party standing means that the plaintiff and the third party are “in
every practical sense identical.” NAACP v. Alabama ex rel. Patterson,
357 U.S. 449, 459 (1958). 48 Because the plaintiff and the third parties
__________________________________________________________
47 We review a district court’s determination of irreparable harm
for an abuse of discretion. See Osguthorpe v. ASC Utah, Inc.,
2015 UT
89, ¶ 37,
365 P.3d 1201. This court will only set aside a district
court’s finding of irreparable harm when that conclusion is “so
lacking in support as to be against the clear weight of the evidence.”
Chen v. Stewart,
2004 UT 82, ¶ 19,
100 P.3d 1177 (cleaned up),
abrogated on other grounds by State v. Nielsen,
2014 UT 10,
326 P.3d
645.
48 If the State’s interpretation were accurate, a plaintiff
appropriately asserting the rights of third parties would almost
never be able to obtain an injunction. This would undermine the
(continued . . .)
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Opinion of the Court
it has standing to represent are sufficiently aligned, the harms
suffered by either are appropriate considerations in determining
irreparable harm.
¶195 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., FED. R. CIV. P. 65; Roberts v. Van Buren Pub.
Schs., 731 F.2d 523, 526 (8th Cir. 1984); Rubin v. Young,
373 F. Supp.
3d 1347, 1351–52 (N.D. Ga. 2019). Federal courts have read
“movant” to include a consideration of third-party harms when the
moving party meets the requirements for third-party standing.
¶196 The United States Supreme Court, for example,
considered harms to third parties in Roman Catholic Diocese of
Brooklyn v. Cuomo, 592 U.S. 14 (2020) (per curiam). There, the
plaintiffs —religious organizations—sought an injunction of a
governor’s executive order imposing caps on the number of
individuals who could attend religious services during a public
health emergency.
Id. at 15–16. To decide whether irreparable harm
was present, the Court looked to the injury to non-parties,
explaining that “the great majority of those who wish to attend . . .
[religious] services . . . will be barred.”
Id. at 67–68.
¶197 In Innovation Law Lab v. Nielsen, plaintiffs sought to enjoin
“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,
543 U.S. 125,
130 (2004). Accordingly, the term “applicant” under rule 65A
cannot be limited to just the plaintiff but must also include third
parties that the plaintiff has the ability to represent.
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Opinion of the Court
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. 812 F. Supp. 1136, 1137 (D. Kan. 1993). To
conclude that there was irreparable harm, the court determined
that “[t]he plaintiffs, as well as all residents of Kansas . . . will be
denied their Fourteenth Amendment rights to vote in this election.”
Id. at 1138.
¶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.” 799 F. Supp. 1417, 1421 (W.D.N.Y. 1992), aff’d
sub nom. Pro-Choice Network of W.N.Y. v. Schenck,
67 F.3d 377 (2d Cir.
1995), rev’d on other grounds,
519 U.S. 357 (1997). To assess
irreparable harm, the Pro-Choice Network district court relied on
harms to prospective patients, explaining that “women denied
unimpeded access to plaintiffs’ health care facilities cannot be
compensated merely by money damages.” Id. at 1428.
¶200 We see no reason not to apply that logic to Utah Rule of
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.
¶201 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.
¶202 The declarations explained that even “in an
uncomplicated pregnancy, an individual experiences a wide range
of physiological challenges” and that pregnancy “can also
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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 OBSTETRICS & GYNECOLOGY
961, 963 (2011); and then citing F. Carol Bruce et al., Maternal
Morbidity Rates in a Managed Care Population, 111 OBSTETRICS &
GYNECOLOGY 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 NAT’L P’SHIP
FOR WOMEN & FAMS., BY THE NUMBERS: WOMEN CONTINUE TO FACE
PREGNANCY DISCRIMINATION IN THE WORKPLACE 1–2 (2016); and
then citing Jennifer Bennett Shinall, The Pregnancy Penalty, 103
MINN. L. REV. 749, 787–89 (2018).)
¶204 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.”
¶205 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.
¶206 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
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hormonal pills.” (Citing D. Grossman et al., TEX. POL’Y EVALUATION
PROJECT, Knowledge, Opinion and Experience Related to Abortion SelfInduction in Texas 3 (2015).)
¶207 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.”
¶208 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.”
¶209 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. 49
__________________________________________________________
49 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 . . .)
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Opinion of the Court
C. The District Court Did Not Abuse Its Discretion When It Determined
that the Balance of Harms Weighs in Favor of PPAU
¶210 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.”).
¶211 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.
¶212 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,
573 U.S. 149, 159 (2014). The Court has
also contemplated that an injury-in-fact can be met through threats
of “sanctions and perhaps loss of license.” Craig v. Boren,
429 U.S.
190, 194 (1976).
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, 633 F. Supp. 3d 847, 857 (N.D.
Tex. 2022) (finding irreparable harm from the “perceived threat of
looming civil and criminal liability” for possibly illegal firearm
purchases). For example, in Longoria v. Paxton, a federal district
court held that irreparable harm could be established from “the
chilling effect that arises from the threat of imprisonment and civil
penalties” related to a law prohibiting government officials from
encouraging “timely vote-by-mail applications.”
585 F. Supp. 3d
907, 915, 933–35 (W.D. Tex. 2022), vacated and remanded on other
grounds, No. 22-50110,
2022 WL 2208519 (5th Cir. 2022). Likewise,
in California Trucking Ass’n v. Becerra, a federal district court found
irreparable harm where the movant “face[d] the risk of
governmental enforcement actions, as well as criminal and civil
penalties” unless they “significantly transform[ed] their business
operations” to treat truck drivers as employees instead of
independent contractors.
433 F. Supp. 3d 1154, 1158–59, 1169 (S.D.
Cal. 2020), rev’d on other grounds sub nom. Cal. Trucking Ass’n v.
Bonta,
996 F.3d 644 (9th Cir. 2021).
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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.” 50
¶213 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.
¶214 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,
854 F.3d 1236, 1254–55
(10th Cir. 2017); and then citing Planned Parenthood of Greater Tex.
Surgical Health Servs. v. Abbott,
734 F.3d 406, 419 (5th Cir. 2013).)
¶215 And the State asserts that it has an interest in enforcing
SB 174 unless the law is “likely constitutionally infirm.” (Citing
Chamber of Com. of U.S. v. Edmondson, 594 F.3d 742, 771 (10th Cir.
2010).) It also argues that “legislative enactments are presumed to
be constitutional unless the contrary clearly appears.” (Quoting
Highland Boy Gold Mining Co. v. Strickley,
78 P. 296, 297 (Utah 1904),
aff’d,
200 U.S. 527 (1906).)
__________________________________________________________
50 We review a district court’s balancing of harms for an abuse
of discretion. See Osguthorpe v. ASC Utah, Inc.,
2015 UT 89, ¶ 37,
365
P.3d 1201. We will set aside the court’s determination only when it
is “so lacking in support as to be against the clear weight of the
evidence.” Chen v. Stewart,
2004 UT 82, ¶ 19,
100 P.3d 1177 (cleaned
up), abrogated on other grounds by State v. Nielsen,
2014 UT 10,
326
P.3d 645.
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Opinion of the Court
¶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, 2019 UT 58, ¶ 8,
450 P.3d 1092 (cleaned
up). But that does not mean that a party cannot overcome the
presumption.
¶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.
¶218 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 UTAH CODE § 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 UTAH CODE § 76-7-301.1(2).)
¶219 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.”
¶220 There is no question that the State has asserted an interest
in protecting life. See UTAH CODE § 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
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Opinion of the Court
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.
¶222 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 AM. MED. ASS’N, Opinion 1.1.3 - Patient Rights, in
CODE OF MEDICAL ETHICS (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.
¶223 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
¶224 The purpose of a preliminary injunction is “to preserve
the status quo pending the outcome of the case.” Hunsaker v. Kersh,
1999 UT 106, ¶ 8,
991 P.2d 67 (cleaned up); see also Univ. of Tex. v.
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PPAU v. UTAH
Opinion of the Court
Camenisch, 451 U.S. 390, 395 (1981) (“The purpose of a preliminary
injunction is merely to preserve the relative positions of the parties
until a trial on the merits can be held.”).
¶225 The district court determined that the preliminary
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.
¶226 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., 427 F.3d 1253, 1260 (10th Cir.
2005) (cleaned up). The last uncontested status between the State
and PPAU existed before SB 174 took effect.
¶227 The State also argues that the district court abused its
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.
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DURRANT, C.J., dissenting
CONCLUSION
¶228 PPAU has standing to press its claims and the claims of
its patients.
¶229 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.
¶230 We affirm the district court’s decision to enjoin the
enforcement of SB 174 while the litigation is pending.
CHIEF JUSTICE DURRANT, dissenting:
¶231 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,
2017 UT 45, ¶ 2,
424 P.3d 95 (“Standing is a question
of subject matter jurisdiction that raises fundamental questions
regarding a court’s basic authority over the dispute.” (cleaned up)).
52 Jenkins v. Swan,
675 P.2d 1145, 1148 (Utah 1983).
53 See UTAH CONST. art. V § 1; id. art. VIII, § 1; Utah Transit Auth.
v. Loc. 382 of Amalgamated Transit Union,
2012 UT 75, ¶ 20,
289 P.3d
582; Brown v. Div. of Water Rts. of Dep’t of Nat. Res.,
2010 UT 14, ¶ 12,
228 P.3d 747.
54 See Jenkins,
675 P.2d at 1149; Baird v. State,
574 P.2d 713, 717
(Utah 1978); Utah Chapter of the Sierra Club v. Utah Air Quality Bd.,
2006 UT 74, ¶ 20,
148 P.3d 960.
PPAU v. UTAH
DURRANT, C.J., dissenting
¶232 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.
¶233 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
¶234 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, 836 P.2d 786, 789 (Utah 1992) (“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.” (cleaned up) (citing Warth v. Seldin,
422 U.S. 490, 499
(1975))).
56 See supra ¶ 10 (listing PPAU’s claims).
57 Supra ¶ 56.
58 See
675 P.2d at 1150.
59
836 P.2d at 789.
78
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DURRANT, C.J., dissenting
I. SHELLEDY’S “IMPOSSIBILITY” REQUIREMENT
¶235 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
¶236 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.
¶237 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, 836 P.2d 786, 789 (Utah 1992). The majority is
unsure of whether Shelledy’s language “actually created a three-factor test.” Supra ¶ 60. I believe that Shelledy’s language firmly
answers that question. In that case, we held that “a party may assert
the constitutional rights of a third party if certain factors are met,”
and then listed three factors. Shelledy,
836 P.2d at 789; see May,
BLACK’S LAW DICTIONARY (12th ed., 2024) (“To be permitted to[;]
. . . . is required to; shall; must.”).
61 Shelledy,
836 P.2d at 789 (quoting Note, Standing to Assert
Constitutional Jus Tertii, 88 HARV. L. REV. 423, 425 (1974)).
62 Supra ¶ 81.
63 Impossibility, BLACK’S LAW DICTIONARY (12th ed. 2024).
64 Impossible, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
(1961); see also Impossibility, WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY (1961) (“[T]he quality or state of being
impossible . . . .”).
79
PPAU v. UTAH
DURRANT, C.J., dissenting
impossible from something that is merely improbable or
impractical. 65
¶238 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.
¶239 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
¶240 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, WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY (1961) (“[I]ncapable of being or of occurring . . . .”),
with Improbable, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
(1961) (“[U]nlikely to be true or to occur . . . .”).
66 836 P.2d at 789.
67 346 U.S. 249, 251 & n.1, 252 (1953).
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”).
69 Shelledy, 836 P.2d at 786–87.
70 Id. at 789.
80
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DURRANT, C.J., dissenting
would have to show that such an assertion had been tried and had
failed, or otherwise could not occur. 71
¶241 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
¶242 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, BLACK’S LAW DICTIONARY (12th ed. 2024) (“[T]o
prevent or make impossible . . . .”).
72 See Textualism, BLACK’S LAW DICTIONARY (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.”).
73 See supra ¶¶ 70–73.
81
PPAU v. UTAH
DURRANT, C.J., dissenting
Tribe, American Constitutional Law § 3-19 (2d ed.
1988). 74
¶243 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
¶244 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
¶245 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, 836 P.2d at 789.
75 Supra ¶¶ 71–73.
76 836 P.2d at 789.
77 Note, Standing to Assert Constitutional Jus Tertii, 88 HARV. L.
REV. 423, 425 (1974) (cleaned up).
78 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.”).
79 Supra ¶ 71 n.14 (describing “the federal cases from which we
borrowed the [third-party standing] doctrine”).
82
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DURRANT, C.J., dissenting
their own rights, we should interpret “impossible” as carrying that
same meaning. 80
¶246 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.
¶247 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
¶248 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).
81 499 U.S. 400, 410–11 (1991) (recognizing third-party standing
upon satisfaction of the requirements that “the litigant must have a
close relation to the third party; and there must exist some
hindrance to the third party’s ability to protect his or her own
interests” (cleaned up)).
82 See 836 P.2d at 789 (citing Henry P. Monaghan, Third Party
Standing, 84 COLUM. L. REV. 277 (1984); LAURENCE H. TRIBE,
AMERICAN CONSTITUTIONAL LAW § 3-19 (2d ed. 1988)).
83 See Monaghan, Third Party Standing, 84 COLUM. L. REV. 277,
288–89; TRIBE, AMERICAN CONSTITUTIONAL LAW § 3-19.
83
PPAU v. UTAH
DURRANT, C.J., dissenting
of correction simply because they chose a different test than we
might prefer.
¶249 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
¶250 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.
¶251 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, 2013 UT 18,
299 P.3d 1098; ACLU
of Utah v. State,
2020 UT 31,
467 P.3d 832 (per curiam); supra ¶ 60
(noting that “[t]his case is our first opportunity to apply this part of
Shelledy”).
86
675 P.2d 1145 (Utah 1983).
87
Id. at 1149–50 (explaining why courts exclude claims based on
the rights and injuries of third parties).
88 I believe the fears that were expressed both before and after
Jenkins are well-founded. Allowing plaintiffs without traditional
standing to bring claims jeopardizes many of the judiciary’s core
(continued . . .)
84
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DURRANT, C.J., dissenting
¶252 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. PPAU LACKS BOTH THIRD-PARTY STANDING AND PUBLIC-INTEREST STANDING
¶253 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,
2015 UT 21,
345 P.3d 553.
92
2013 UT 18,
299 P.3d 1098.
93
836 P.2d 786, 789 (Utah 1992).
85
PPAU v. UTAH
DURRANT, C.J., dissenting
¶254 In part this is because, as explained above, I disagree with
the majority’s interpretation of Shelledy’s “impossibility”
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.” 94
¶256 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.
¶257 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 highprofile 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.
¶258 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
__________________________________________________________
94 Supra ¶ 76.
86
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DURRANT, 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.
¶259 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.
¶260 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 IND. L.J. 269, 282 (1993).
96 Supra ¶¶ 8–9.
97 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, PLANNED PARENTHOOD (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.
87
PPAU v. UTAH
DURRANT, 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.
¶261 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.
¶262 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, 2008 UT 6, ¶¶ 52, 56,
178
P.3d 893 (noting that the plaintiff’s use of a pseudonym is a matter
of first impression and deciding that allowing a plaintiff to use a
pseudonym is a decision within the discretion of the district court),
abrogated on other grounds by Utah Res. Int’l, Inc., v. Mark Tech. Corp.,
2014 UT 59,
342 P.3d 761.
99 Lindsey v. Dayton-Hudson Corp.,
592 F.2d 1118, 1125 (10th Cir.
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).
100 See, e.g., The Justice Gap: Addressing the Unmet Legal Needs of
Lower-Income Utahns, UTAH BAR FOUNDATION, 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”).
88
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DURRANT, 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
¶263 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.” 101
¶264 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.
¶265 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.
__________________________________________________________
101 Shurtleff, 2013 UT 18, ¶ 13 (cleaned up).
89
