Judge Reminds Anti-Abortion Attorneys That No Women Helped Draft Utah’s Constitution in 1895

Anti-abortion attorneys defending Utah’s abortion trigger ban, which is currently blocked, on Tuesday appealed to the state Supreme Court by calling on the justices to focus on the state Constitution in deciding whether to lift the injunction on the ban. They argued that Utah’s Constitution is clear that abortion should be prohibited: “There is an unbroken history and tradition … before 1973 [when Roe v. Wade was decided], of prohibiting abortion. And that unbroken history has to be part of this Court’s analysis, rather than present-day policy arguments about the benefits or the or lack thereof of abortion,” attorney Taylor Meehan argued.

In response, Judge Paige Petersen reminded Meehan of some state history that the attorneys defending the law seemed to be forgetting: “Women were in the audience, but they weren’t any of the delegates” who helped create the state Constitution in 1895, Petersen said, according to Axios. “How do we know … what they thought the meaning of their rights were? It seems important in this context because women are the ones that experience pregnancy and experience childbirth.”

Indeed, a number of states with abortion trigger bans that pre-date women’s suffrage have run into a similar problem. Arizona has a trigger law in the books that dates back to 1864. Wisconsin has an abortion ban currently in effect that dates back to 1849, before the Civil War. A judge is still weighing whether a law from 1870 banning abortion in West Virginia should take effect, though a separate abortion ban is currently effective in the state.

To that end, the comments from Judge Petersen, who’s part of the state Supreme Court’s first-ever female majority, carry nationwide relevance: Women and pregnant people are, by and large, living under draconian laws about whether we can make fundamental decisions about our bodies that we had no say in. In recent years, we’ve seen all-male Congressional panels weigh birth control restrictions, and we’ve seen all-male legislators in Alabama vote to pass an abortion ban. More recently, a conservative convention in Georgia hosted a panel of “pro-life” men making the case for people who have abortions to be put to death.

Today, plenty of women legislators help pass horrific laws restricting our reproductive rights all the time. But to Petersen’s point, if we’re weighing the foundational laws and historical origins of the state’s system of governance, it’s significant that no women and pregnant people who are being impacted by the state’s Constitution had any say in it.

In addition to its bogus claims about the state Constitution, the state of Utah argued that Planned Parenthood, which is suing for the injunction on the abortion ban, doesn’t have standing to challenge the law because no patients have come forward and said they’ve been harmed by it. “PPAU is directly regulated by this act, and it absolutely has standing to bring the constitutional rights of its patients before the court,” an attorney for the organization said in response in court. Planned Parenthood’s legal team also brought attention to the impacts the ban would, indeed, have on their patients: “Thousands will have to flee their communities to seek basic health care or endure forced pregnancies and birth against their will.”