Utah's Majority-Women Supreme Court Upholds Injunction of Strict Abortion Ban and Includes Women's Legal Scholarship of History in its Analysis

The majority-female Utah Supreme Court upheld an injunction preliminarily enjoining an abortion ban by a vote of 4-1. The case is Planned Parenthood of Utah v. State, ___P.3d___, 2024 WL 3612730 (Utah Aug. 1, 2024)

    Wash Post, Utah Abortion Ban Remains on Hold After Ruling by State's High Court

    NYT, Utah Supreme Court Upholds Block on Strict Abortion Ban

In the discussion of the state history of abortion regulation in the late 19th century, the majority includes a discussion of my work: 

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. ***

 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 (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)).