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Document: State legal officer questioned footing for lawmakers’ abortion letters

By Cathy McKitrick - Special to the Standard-Examiner | Nov 4, 2022
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Alvaro Zilleruelo, third from left, talks with Daryl Bennett, center, and Tyler Ockey, right, outside the Utah State Capitol as other pro-life supporters make their way inside the building during the March 4 Life on Saturday, Jan. 28, 2017, in Salt Lake City.
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Rep. Kera Birkeland, R-Morgan, stands for a portrait at the Utah State Capitol Wednesday, March 2, 2022, in Salt Lake City.
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Rep. Karianne Lisonbee

Cease-and-desist letters that two Utah lawmakers sent to abortion providers in mid-September sparked controversy and raised questions about the legal basis they used to make their hefty threats.

Republican House Reps. Karianne Lisonbee (Davis County) and Kera Birkeland (Daggett, Duchesne, Morgan, Rich and Summit counties) sent the letters, dated Sept. 15, to at least eight state and national recipients, including a doctor, a health clinic and various abortion rights organizations. Twenty GOP House colleagues and two candidates signed on to them as well.

But what they didn't do was get legal advice from the state Office of Legislative Research and General Counsel, or OLRGC, regarding the position they took on official state letterhead.

As a result, a few House members requested legal advice from OLRGC after the letter came out. The Standard-Examiner recently obtained a copy of that detailed response.

How it began

On June 24, Utah's trigger law banning almost all abortions took effect in response to the U.S. Supreme Court Decision in Dobbs v. Jackson.

But that law was immediately challenged in 3rd District Court by Planned Parenthood and the ACLU of Utah, temporarily blocking the ban from taking effect while the case makes its way through the court.

So for now, abortions are still legal in Utah up to 18 weeks of pregnancy -- which seemingly did not sit well with Lisonbee and Kirkeland.

Citing two cases (Whole Women's Health v. Jackson and Edgar v. MITE Corp.) as precedent, their letter warned that the injunction "does not shield (letter recipients and their clients or backers) from future prosecution or punishment (for any performed abortions) ... if the primary injunction is vacated or reversed on appeal."

The letter went further, demanding that abortion providers "must preserve all evidence of every criminal abortion and every violation of (U.S. Code) that you have participated in" -- including details of individuals or entities that "aided or abetted the illegal abortions," including employees, volunteers, donors, employers or abortion funds that paid for the procedures, which some versions of the letter refer to as "criminal acts."

The letter further warned that shipping abortion-inducing medication across state lines would be prosecuted under the federal Racketeer Influenced & Corrupt Organizations Act, also called RICO, should Republicans retake the presidency.

"We will also be introducing legislation to give the Attorney General of Utah parens patriae standing to litigate on behalf of unborn Utahans," they wrote, claiming it would then allow the state to sue for federal RICO violations.

While questions remain about the legal basis they used for their letters, Lisonbee declined requests for comment, saying she and Birkeland have agreed to only do interviews together -- and neither had the time for that.

Separating fact from fiction

The OLRGC analysis, written by Managing Associate General Counsel Thomas Vaughn, blew holes in the key threat made by Lisonbee and Birkeland.

According to Vaughn, the current injunction suspending the abortion ban not only applies to procedures provided while the court order remains in effect, but also includes future enforcement of conduct during that same period of time.

In other words, abortions administered now cannot be prosecuted later -- if and when the new law takes effect.

However, regarding interstate shipping of abortion medications, Vaughn advised that their letter might be accurate -- such actions could be federally prosecuted within five years of the prohibited act.

"While it is true that this law is unlikely to be enforced during President Biden's administration with respect to medication intended to produce an abortion ... a new administration may choose to enforce this federal statute within the five-year statute of limitations," Vaughn wrote.

Vaughn noted that demands voiced by Lisonbee and Birkeland amounted to no more than an exercise in free speech, since their elected positions involve law making rather than law enforcement.

Citing legislative rules regarding abuse of position and violation of trust, Vaughn wrote that Lisonbee's and Birkeland's actions would be subject to interpretation because the terms are not clearly defined.

"(A)rguments could be made on both sides regarding whether the letter was appropriate under this provision," Vaughn wrote.

Politically polarizing

Attempts to reach House Speaker Brad Wilson by phone for comment were also unsuccessful.

House Minority Leader Brian King -- an attorney by profession and one of the House members who sought the OLRGC's legal opinion -- weighed in on Lisonbee's and Birkeland's letters.

"You've got a couple of legislators who are not only acting in their legislative function but also like the judge or the executive branch," King said.

While he could see they felt strongly about the issue, King noted that a "strong emotional response is not any more justified for one side of this issue than the other."

In a September opinion piece published in The Salt Lake Tribune, University of Utah law professor Teneille Brown slammed Lisonbee's and Birkeland's letter, saying their "wacky" perspective violated the Constitutional prohibition on ex post facto laws -- referring to criminal statutes that punish actions retroactively.

"All appearances to the contrary, the legislators and candidates who signed this letter have zero power to enforce any of the laws they cited," Brown wrote. "You'd almost forgive them for their recklessness, if they weren't trampling on our rights and confusing the public in the process."

Reached recently by phone, Brown said she'd received a lot of harassing emails and online attacks in response to what she wrote, going so far as to say they had concealed carry permits and knew where she lived.

"When you write in this space you expect people to write really nasty things -- and they do," Brown said. But she reaffirmed the reason she spoke out.

"There needs to be some accountability for deceiving the public," Brown said, "and especially using state letterhead to do so."

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