Lawyers warn of Utah death sentence for abortion Paired old, new laws could bring penalty

March 08, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Women in Utah who have abortions, and their doctors, may face life in prison and possibly even a death sentence if that state is allowed to enforce its tough new anti-abortion law, lawyers are now telling their clients there.

Under those attorneys' readings of new and old Utah abortion laws, conviction for performing or having an abortion could lead to far heavier penalties than in any other state. That is at least possible in theory, although it might not ever happen in fact, state officials suggest.

The heaviest penalties would result if Utah prosecutors found they were free to treat abortions under the new law as first-degree murder, carrying life in prison or, in extreme cases, death as the sentence.

The new interpretations of the way the "crime of abortion" would be prosecuted in Utah under its new law reflect the kind of skirmishing going on as legislatures in a rising number of states and U.S. territories seek to set the stage for a major new test case in the U.S. Supreme Court.

The aim, according to sponsors of new anti-abortion laws, is to pass one so clearly at odds with the court's 1973 ruling in Roe vs. Wade -- which established a right to abortion -- that the court would be led to rethink that ruling and modify or overrule it.

Already, laws passed by the territory of Guam and by the state of Pennsylvania are working their way up through federal courts, and a constitutional challenge is about to be mounted in Utah against that state's restrictive new law.

In preparing the lawsuit that will be filed in Utah, attorneys for the American Civil Liberties Union and for doctors in the state have done a fresh study of an older anti-abortion law on the books in Utah and have found that the new law may work in tandem with the older law to convert abortions into first-degree murder.

This discovery has led to an intensifying campaign in Utah to build opposition to the new law on the eve of the new court challenge.

Since 1983, Utah's murder law has included the intentional killing of "an unborn child." But that law has never been used as an anti-abortion law, because it has a clause saying that ending a pregnancy is not murder "where the abortion is permitted by law."

When Utah's new anti-abortion law was passed at the end of January, the legislature did not change the murder law. Lawyers who followed the legislature's action say that the older law was overlooked, perhaps by accident or mistake. Whatever the reason, the old law remains because the legislature has adjourned for the year.

Now, that law could take on a new meaning in the state, because abortion is now outlawed by the new law, except in narrow circumstances. The legislature specified that abortion is a crime unless it is done to save the life of the pregnant woman, to avoid "grave damage" to the woman's health, to end a pregnancy that resulted from rape or incest, or to avoid the birth of a child with "grave defects."

If prosecutors opt to prosecute a woman or a doctor only under the new law, the penalty could be a 5-year prison term or a fine of $5,000. But they would have the option, according to the challenging lawyers' new study, to pursue an illegal abortion as "criminal homicide" under the 1983 law.

ACLU lawyer Janet Benshoof said yesterday that lawyers in Utah have been told of this prospect, and have begun to advise their vTC clients -- doctors and pregnant women -- that they face even heavier risks if the state law is allowed to take effect.

The law is to take effect April 28, unless blocked by a federal judge. The new interpretation of the potential severity of prosecutions in the state will be used as part of the effort to get the new law blocked temporarily, according to lawyers working on the case.

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