by Linda Sillitoe
The Scarlet Issue
[p.145]The gap between the State of Utah and the ACLU on civil liberties matters widened to a polar position on reproductive rights. The Utah ACLU stood firmly with the national organization on this vanguard issue; autonomy within one’s own body crystallized the essence of civil liberty as the concept of privacy developed as an implicit constitutional guarantee. The state aligned itself with LDS church policy, which had liberalized in recent decades only to the extent of weighing the mother’s life, health, or victimization in dire and documented instances against bringing a pregnancy to term. Each entity reached far into its own ethos when it carne to the legality of abortion, with neither inclined to compromise very much.
Of course the Catholic church presented a strong anti-abortion stance across the United States, but in Utah that burden fell most heavily to Mormonism. The official view was that abortion represented a “like unto” sin associated with the Old Testament’s commandment, “Thou shalt not kill.” Even if a pregnancy endangered a mother’s life or health, or resulted from rape or incest, a woman needed priesthood authorization to abort. The counseling might include her spouse, parents, or doctor. Disobedience jeopardized church membership. Given the strength and commonality of this philosophy among Utah’s citizenry, perhaps it was not surprising that while abortion politics disrupted some cities, the Beehive State remained quiet. Demonstrations on both sides blossomed outside the annual meeting of the [p.146]legislature, but broader protests were discouraged by the power structure as divisive, distasteful, and unnecessary.
In the early 1990s the mostly Anglo, male, Mormon legislature prepared to lead the battle against legal abortion. No one doubted that any restriction would be challenged by the Utah ACLU under Roe v. Wade, which only gave the contemplated law a far wider impact. If successfully defended, a law passed on Capitol Hill could affect the nation.
The law that was enacted in 1991 echoed LDS church policy, passing the secular decision to terminate pregnancy from priesthood leader to doctor. Again, regardless of circumstance, the pregnant woman could not decide on her own. Thus the law essentially constituted a ban, although it allowed for certain exceptions that were unpopular among die-hard pro-lifers.
Significantly, though coincidentally, the abortion issue sizzled to a boil during the same years that the school prayer issue erupted in its own cloud of steam. Throughout, the affiliate sued for prisoner rights and pressed a host of less publicized concerns which, in the public mind, mingled to give an overall impression. From the traditional ACLU perspective, the affiliate’s causes were classic defenses of those with minimal power—prisoners, minority religions, unbelievers, and marginalized women. The opposite view held that the ACLU coddled those most dangerous to society and decried all that was holy, including the beginnings of human life.
A wrinkle that lay buried in the gray matter of Mormon culture and invariably filtered into issues of life and death was the nineteenth-century concept of “blood atonement.” Though historians demurred as to its actual practice, the doctrine that held sway in sermons and folklore claimed that major sins such as murder and adultery could be atoned only by shedding a sinner’s blood. Whether blood atonement was practiced commonly, rarely, or never in the nineteenth century, it remained conceptually present in temple rites and still affected people’s thinking around the death penalty. For instance, while the ACLU battled to prevent Gilmore’s and Selby’s executions, within at least two other high-profile multiple murder cases in the 1980s relatives expressed preference for execution. This, they thought, would redeem their way-[p.147]ward relatives in the afterlife.
With abortion considered like unto murder, the concept of blood atonement cast an indefinite but pervasive shadow. Likely it would never be mentioned during a secular discussion of abortion, yet among a people feeling so strongly the appropriate penalty for murder, it could not be discounted. Mormons argued the abortion question along the rational track taken by most pro-life groups, but below that track lay somewhat different ground.
Given all these factors, the Utah ACLU operated in an inflamed climate. For some Utahns the very acronym was a buzzword for the hiss of the anti-Christ, and the ranks against the ACLU tightened, waving the abortion ban like a banner. For others “ACLU” represented more than ever the champion of individual rights in an overwhelmingly homogeneous state. Accordingly, members and dollars flowed toward the affiliate in an unprecedented wave. As with prayer, prison, and other hot issues, the abortion question became a rallying point.
Michele Parish boosted the number of affiliate members donating more than $1,000 per year from a single generous donor to more than thirty. One tactic involved encouraging sympathetic lawyers to take others to lunch and ask for the donation. When issues heated up, Parish became “mildly notorious” as a lunch partner who would exchange stimulating discussion for a donation. “I was always looking for ways to raise money,” she said, explaining that this was how interested bystanders “got to play” in the political arena.
A poll in the Salt Lake Tribune on January 30, 1990, illustrated the polarity the ACLU provoked among the general public. Nineteen percent approved of the ACLU stand on capital punishment, its challenge to prison conditions, or its effort to clarify the legality of prayer in schools. Forty percent disapproved. Interestingly, a total of 42 percent either abstained, were undecided, or were unaware of one or more issues-perhaps the majority that Governor Bangerter observed as considering such discussions “yawners.” Nevertheless, the poll showed that among those who cared, easily twice as many condemned the ACLU as supported it. The abortion question was not included, but nothing suggested that the results would differ.
[p.148]As executive director, Parish spoke for reproductive rights as forthrightly as she did on other issues and found a responsive audience among those aligned with women’s issues. In 1990 Parish received the Woman of Courageous Action Award from the Utah National Organization for Women. The NOW newsletter cited “her unswerving dedication to the principles of the Bill of Rights, her fight with prison administrators, her battle against prayer in the public schools,…and her willingness to speak out on the abortion issue.” A year later Parish received the Susa Young Gates award from the Utah Women’s Political Caucus. She also became secretary of the national ACLU’s International Human Rights Task Force and began dreaming of organizing an ACLU affiliate within the Soviet Union, which was then undergoing social change. As the issues bore her into battle, Parish’s horizons widened and her sense of what might be accomplished increased.
During cross-affiliate chats with Robyn Blumner, Parish would recall her mentor’s surprise: “Robyn would say, ‘God, I can’t believe you’re the same woman!—this quiet little minister’s wife who came in with a huge unfinished novel and a handful of clippings.’” In reality, throughout 1990 Parish found it more and more difficult to remain a minister’s wife. Fencing with skilled and determined foes in one ideological arena after another and claimed by an incessantly ringing telephone, her attention was compelled by each day’s challenges. Her work became so absorbing that family and church, which once dominated her life, now seemed far less urgent. Tensions developed as her priorities changed.
“You need a certain level of hysteria to be happy,” she would recall her husband saying. Parish considered that hyperbolic. Yet she admitted that if she ever became bored, she would probably “get into trouble.” Her husband’s reaction to her NOW award carried a sting: “You’re not a woman of courageous action. You’re just a neurotic, driven woman.” In retrospect she would “feel more compassion” for that response, realizing the gap that had widened between her public and personal worlds. But before year’s end, Parish would conclude that her prayer to be more than “just a minister’s wife” in Utah had been answered in the most painful way she could imagine—with a divorce. Yet her ACLU directorship seemed to culminate her political activism during college [p.149]and all the years she spent caring for people and developing a spiritual life. “This job was a real fulfillmeut of all those parts of my life.” They removed the hyphen between the last names Parish and Pixler, and their daughters divided each week between Michele’s home in Salt Lake City and Wesley’s new home and congregation in Ogden.
While struggling with the dissolution of her marriage, Parish threw herself into ACLU battles. In her odd moments, she consulted with small ACLU affiliates on fund raising and administration. Early in 1991 she visited the University of Utah and organized a student chapter, with Marlayn Cragun as representative and staff associate. All in all, she did not appear likely to become bored soon. If nothing else, the abortion battle would see to that.
Right to privacy was a concept that did not emerge all at once but gathered force during the long conflict over a Connecticut birth control law which U.S. Supreme Court justice John Marshall Harlan argued was “an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual’s personal life.” Quoting Harlan, author Samuel Walker wrote, “Privacy was no longer a question of search and seizure but a civil liberties issue that directly touched the lives of millions of middle- and upper-middle-class Americans.”
The idea gained strength in 1965 when “an activist civil libertarian majority,” as Walker called it, ran the highest court. “In Griswold, Justice William O. Douglas found a constitutional right of privacy in what he termed the ‘penumbras’ and ‘emanations’ of the Bill of Rights.…” These subtleties, Douglas wrote, were apparent in the First Amendment freedom of association, the Third Amendment prohibition of quartering soldiers, the Fourth Amendment protection against unreasonable searches and seizures, the Fifth Amendment protection against self-incrimination, and finally the Ninth Amendment declaration that people retained rights not specified in the Constitution.
This sweeping assertion surprised legal scholars who hastened to understand its full impact. Certainly Griswold confirmed the public’s rapidly rising expectation of privacy, but it also laid the foundation for a constitutional attack on existing criminal abortion laws. A backlash was certain, although it took a little time to develop. “Penumbras” and [p.150]“emanations” seemed shaky to some legal scholars. When the newly affirmed concept of privacy underwrote a movement as controversial as reproductive rights, the backlash became fierce enough to polarize Americans from the mid-1970s on.
ACLU involvement preceded the action by almost a decade. It adopted the issue in 1967 and refined its stance in 1968, supporting a woman’s right to an abortion “prior to the viability of a fetus.” The stage was set for the historic and controversial Supreme Court decision.
Walker wrote: “Roe v. Wade swept aside existing criminal abortion laws, with Justice Harry Blackmun holding that the right to privacy included a woman’s right to an abortion.” Blackmun did not uphold an absolute right but differentiated by a pregnancy’s trimesters with the state’s interest increasing as the pregnancy advanced. “Sorting his way through the complex moral and medical considerations, Blackmun rejected the anti-abortion argument that the fetus was a person entitled to protection of the Fourteenth Amendment.”
As the high court stood firm through the 1970s, Utah’s senator Orrin Hatch introduced a constitutional amendment in 1983 stating that “a right to abortion is not secured by this Constitution.” It lost by only one vote in the senate. A year earlier the senate had tabled a similar human life statute, again by one vote.
Although the right-to-life movement became increasingly vocal, most Americans favored keeping abortion legal. One in five favored the extremes—an unlimited right or no right. The remaining 60 percent wanted abortion legal in consultation with a physician and restricted by the stage of the pregnancy.
After Congress failed to pass an anti-abortion amendment, “the right-to-life movement began to unravel in an acrimonious feud between hard-liners who wanted to ban all abortions and pragmatists who were willing to accept an exception for rape and incest victims,” Walker wrote. Ultimately the power to decide remained with the Supreme Court. For almost two decades following Roe v. Wade, the court upheld it against attempts to breach the bulwark. However, the composition of the court changed, and during the 1980s the justices began to retreat. At that point, the ACLU, among others, switched tactics, fighting not to gain ground but to hold the line.
[p.151]By the early 1990s states were allowed to express a preference for pregnancy and to restrict access to abortions, although they could not prohibit them entirely. Bit by bit, state regulations tightened access. Pennsylvania required informed consent—mandatory counseling and advisement of other options, then tried to impose a twenty-four-hour waiting period and spousal consent, but those were struck down.
As the fortress door inched open, forces pushing against it took heart and pushed harder. The Utah legislature hoped to provide the hardest shove of all, one with enough muscle to knock it down.
When the legislature convened in 1990, Governor Norm Bangerter would say later, the body expressed the hard-liners’ eagerness for an absolute ban, which the more moderate governor considered indefensible. From Walker’s point of view, Bangerter was a pragmatist in a pro-life camp, insisting that sensitive aspects of the issue be considered. A transcript prepared for the ACLU and Planned Parenthood by affiliate intern Sharon Smith caught the governor’s words in his State of the State address:
The depth of our desire to protect the unborn must be tempered by two important considerations: first, we must be sensitive to those limited circumstances, and I emphasize the word “limited,” in which women ought to have abortion available as an option. In cases where there is a grave threat to the life and health of the mother, or when the fetus suffers from profound and irreversible disabilities, or in cases of rape or incest, termination of the pregnancy may be appropriate.… The decision as to whether or not to have an abortion is the most difficult a woman in counsel with her loved ones and her doctor will ever make.… One of the founding principles of our republic is that we do not punish those who in good faith and in good conscience make the very best decision they can. We need to honor this principle as we attempt to legislate the activity of those who struggle to make morally correct decisions that protect the sanctity and dignity of life, both of the born and the unborn.
Another consideration was that since Roe v. Wade was decided in 1973, legislatures had not controlled the issue, Bangerter continued:
[p.152]In 1989 the Webster decision signaled the beginning of a process that I personally hope will eventually lead to the reversal of Roe v. Wade.… There is, however, no indication that the Court is willing to accept the kind of wholesale restriction of abortion most of us would like to see. Let me spell it out very carefully. If we pass a bill that is ruled unconstitutional we will not have saved the life of one child. Not one. Does this mean we can only pursue a measure that is guaranteed approval by the Court? Of course it doesn’t. We must be willing to take some risk…but we must not waste our time or resources on dramatic gestures that have no real chance of success.
Bangerter wanted the legislators to “do their homework.” That meant hearings throughout the state to learn what the general citizenship wanted. This process provided a legislative history to show judges or justices the intent behind the law.
Doctors who wished to participate in the hearings and later became ACLU plaintiffs perceived the hearings as one-sided, tipped dramatically toward the anti-abortion position. Jeff Oritt, an attorney well versed in reproductive rights, agreed to champion the cause for ACLU Utah and, in the spring of 1990, invited colleague Howard Lundgren aboard. Along with Planned Parenthood, they considered a lawsuit, knowing that the national ACLU would shoulder most of the burden. As legislation was postponed until the following year, Lundgren said, “all actors were put on notice that something would happen in 1991.”
Even as both sides assembled their ammunition, the Salt Lake Tribune reported in June 1990 that two other states were lobbing volleys against the Supreme Court. In a six-to-three vote, the court upheld an Ohio law requiring notification of one parent when unmarried girls sought abortions. With a five-four vote, the high court split even closer, striking down a Minnesota law requiring notification of both parents. By another five-four vote, however, the justices upheld a portion of the Minnesota law requiring approval of both parents or a judge.
The newspaper reported that Utah was split as well: “A Utah pro-life group said the decisions clear the way for the state to enact tougher parental notification laws. But the [ACLU] sees the rulings as eroding women’s rights.…” In Utah doctors were required to notify parents or a guardian “if possible” of a minor’s abortion. Rosa Goodnight, presi-[p.153]dent of Right to Life of Utah, told the Tribune her group wanted both parents to be notified, with no exceptions.
The ACLU regarded the judicial trend as chilling, so Parish announced that she would not challenge the current parental notification law and risk the high court’s decision. “I sympathize with parents wanting to be involved in their daughter’s decision, but teens who don’t want to notify their parents usually have a good reason,” she said, citing incest as one example.
Bangerter did not relish an abortion war in Utah; later he would vigorously and unsuccessfully resist congressional hearings in the state. “I would have preferred that the battle be fought somewhere else because in our community these issues end up becoming so divisive.” However, lawmakers surged through their “homework” hearings and emerged in January 1991 with another total ban. The governor was not pleased. “I told them, ‘I don’t agree with this, and it will never pass muster with the Supreme Court.’”
In his 1991 State of the State address, the governor announced that if the legislature sent him the bill they’d drawn up, he’d veto it. After the speech, “the pro-choicers thought I’d done away with it,” Bangerter related. “But I’d outlined what was acceptable to me, and that’s what they passed.” The exceptions specified reported rape or incest and medical causes—precisely those allowed by the LDS church.
Bangerter said he had not known the exact LDS position on abortion, and that church leaders never tried to influence him on the subject. Nor did they lend support when he resisted a total ban. A pro-life stance was ingrained within the community consciousness, and LDS policy fell with slight variation from the lips of most candidates for public office, to enter the public’s ears sounding familiar and reasonable.
The Crintinal Abortion Statute slid through the 1991 legislature on January 21 and landed under the governor’s pen with such speed that it shocked the ACLU and other pro-choice advocates. As Lundgren recalled: “Then this bill came to the floor, and in a matter of hours had passed, and in a matter of days had been signed. That bill was entirely contrary to what we thought [Bangerter] would do.”
Democratic attorney general Paul Van Dam told the legislators he did not believe their bill was defensible in court. But not even that [p.154]slowed the impetus. As a result, the complaint that Oritt and Lundgren had readied for district court and recently set aside suddenly gained immediacy and focus.
Bangerter would call the Criminal Abortion Statute “my bill.” Personally, he said, he conceded the mother’s dominant right to decide, “but there comes a time when the fetus needs someone to consider its lesser right. The mother has the right, but needs another opinion to support her interest when at the expense of the baby.”
The new law neither allowed abortion unconditionally with a doctor’s consultation during the first trimester, as did Roe v. Wade, nor banned it completely after the first trimester, as many pro-lifers advocated. Even Roe v. Wade favored pregnancy over abortion as fetal development advanced.
Bangerter viewed it as a “pro-choice bill, if you read it.” He explained, “We just required a doctor to say there is a good reason—a deformed fetus, rape or incest, or health of the mother. Then you don’t have a little girl making a decision in a vacuum. At least a doctor is backing her up.” Bangerter felt that willing doctors would not be hard to find. “We give doctors a lot of sway in our society,” he said. “You turn on LDS general conference and someone says the church president isn’t there because his doctor said he shouldn’t come.”
Civil libertarians could scarcely grasp this reasoning when it was explained to them. No reason other than a woman’s choice was needed during pre-viability; the requirement for any authority’s sanction violated Roe v. Wade and was anathema to the concept of privacy. More practically, Oritt and Lundgren found the bill’s language vague, and so did the growing number of doctors who would file suit against it. What constituted “grave harm”? How would “good faith and best medical judgment,” as Bangerter described it, be interpreted in actual situations?
“We had no guarantee that some prosecutor in Juab County or somewhere wouldn’t feel that a woman who was [clinically] depressed due to the pregnancy was not suffering enough to have an abortion,” Lundgren said. “Our position was that this was the most restrictive law passed in the country and provided a ban on virtually all abortions. Furthermore, it was passed with the special purpose of challenging Roe v. Wade.”
[p.155]Not only did the medical definitions cause concern among some doctors, but the ACLU objected that legal standards imposed on victims of rape or incest were almost impossible. “The reporting requirement killed one’s realistic ability to obtain an abortion because of the data showing that many, many women don’t report those crimes, and that reluctance to report is a psychological after-effect of that type of assault,” Lundgren said.
The lawsuit prevented the new law from being enforced. On April 6, 1991, the Tribune announced: “Showdown Set: ACLU Files Suit Against Abortion Law.” Staffer Dawn House wrote: “The ACLU has filed a federal lawsuit challenging the constitutionality of Utah’s new anti-abortion law, believed to be the toughest in the nation.” Filed in U.S. District Court, the suit represented ten physicians, ten religious leaders, four counselors, Planned Parenthood, the Utah Women’s Clinic, and a pregnant woman whose name was not used.
Under the pseudonym Jane Liberty, the central plaintiff wrote, “I know the state of Utah wants me to have another baby. But the state is not raising my two children, I am.” Liberty did not claim rape, incest, a deformed fetus, or grave danger to her health or mortality. She did not claim, as the governor had explained, “a medical person who says there is a need for it.”
Certain doctors joined the suit due to the law’s broad language. Technology enabled in utero surgery to mitigate fetal distress and the use of fertility drugs to encourage pregnancy. Once a cluster of embryos developed within a uterus, typically some were interfered with so that the rest could develop. The old abortion law—already problematic given these new procedures—was also challenged in the lawsuit. Doctors wanted to know exactly what procedures would be considered illegal. Quickly the medical issues became some of the most difficult to solve, sparking litigation for years. But the confusion did not end there.
As the ACLU sought temporary restraining orders and preliminary injunctions against the Criminal Abortion Law, the question arose whether the law was worth a million dollars from taxpayers to defend it. The Tribune reported: “Governor Bangerter said he would not attempt to enforce the law until the Supreme Court reviews it.” Bangerter referred reporters to Utah attorney general Paul Van Dam, in charge of [p.156]coordinating the law’s defense, despite Van Dam’s earlier opposition to the legislation.
Bangerter’s aide Bud Scruggs defended the potential cost, saying that “sometimes principles have price tags,” which seemed to summarize the pro-life feeling in the state. However, Scruggs’s comment annoyed those whose principles led them to oppose the ban.
For instance, the lawsuit objected to spousal notification, which required even a battered woman to tell her abusive husband. A woman must inform her husband no matter what, even if another man had fathered the child. In addition, the ACLU raised the rights of counselors and clinics who might advise women. Could they, too, be prosecuted under the new law?
While the Utah affiliate undertook litigation, the ACLU National Reproductive Rights Project stirred the public. They ran a large advertisement in the New York Times that broke waves of shock and resentment in Utah. In big type, the ad began: “IN UTAH, THEY KNOW HOW TO PUNISH A WOMAN WHO HAS AN ABORTION. SHOOT HER.” The smaller print explained that on April 28, a new law would go into effect. “Under it, a woman who has an abortion could be sentenced to the death penalty. In Utah, that means the firing squad. (Or she may choose lethal injection as an alternative.)”
It continued: “Virtually no woman will be able to escape this law. Because it prohibits virtually all abortions—even in most cases of rape and incest.” The ad gave background, then quoted the bill’s sponsor, Senator LeRay McAllister: “It isn’t as serious as it appears.” “Not serious?” the ad jeered. “Maybe they had some less serious penalties in mind. Life imprisonment, perhaps.”
The ad announced the lawsuit and included a donation slip for readers’ convenience. It suggested that people write to Utah’s governor and lobby their own representatives in Congress to protect reproductive rights. With devastating insight, the message combined the new abortion law, the state’s death penalty, and the sentiments and beliefs underlying them, then projected the extreme result.
As politicians and LDS officials scrambled to explain that no Utah woman would be shot for having an abortion, national boycotts sprang up against conventions and other activities in Utah. Civic leaders and [p.157]economic gurus voiced concern. Scruggs shrugged off the threat with, “We believe the ACLU and NOW talk to the fringes. They reach the kind of people we don’t want to come to Utah anyway.”
This flippant remark provoked a local uproar which echoed as the statement was picked up by the national media. It seemed to reinforce the image the New York Times ad projected of a place where difference of opinion was unwelcome.
The legislature was summoned to a special session to remove criminal liability for women and their counselors. “We left a penalty for a doctor performing an illegal abortion,” Bangerter would say later, “but we tried not to second-guess medical judgment.”
Meanwhile the governor emphasized to Scruggs and other aides what he later would tell the International Olympic Committee, then considering northern Utah as a site for the 1996 Winter Games, that the statute allowed reasonable exceptions. He explained, “I can see the pro-choice side; some people can’t. I can see a powerful argument for a woman to be the sole determinant for what happens to her body. I lean toward her having the major say, but there’s another life at whatever degree of development, and it’s entitled to some protection.” Both sides, however, continued to see the law as a ban overall and defend or attack it as such.
At the end of May, the Tribune announced that Scruggs would be leaving in August “to embark on a career outside the political arena.” Scruggs admitted to “getting beaned” by his abortion comment. He said he “always believed public service is best in short doses.”
The article concluded: “As the governor’s chief of staff, Scruggs has been known to make statements often considered irreverent by the target of the comment, especially the American Civil Liberties Union.” Indeed, Parish had written to Scruggs objecting to one of his sallies that characterized her as anti-religious. Nevertheless the two achieved an amiable relationship. Scruggs joined the faculty at Brigham Young University in Provo.
Below the fireworks, the process of readying the ACLU lawsuit galvanized with Janet Benshoof of the National Reproductive Rights Project who would serve as lead counsel. Even after Benshoof left the [p.158]ACLU to found the Center for Reproductive Law and Privacy, she continued as lead attorney.
When Benshoof and other New York attorneys appeared in Salt Lake’s courts, Lundgren said later, they tended to get a “bad rap” in the city’s media. However, in working with them, Lundgren found the attorneys “intelligent, competent, and very aggressive.” The New York style didn’t defer to the local sensibilities as people would have liked, Lundgren said, “but people forget this was an extremely politically-charged lawsuit.” Even some attorneys on the ACLU’s local legal panel suggested a more conciliatory approach.
Meanwhile, the State of Utah ran into lawyer problems when the eminent firm Jones, Waldo, Holbrook, and McDonough was forced to withdraw over a conflict of interest. Mary Anne Wood, a professor at BYU’s law school, became the strident lead counsel for the state’s defense.
In May Deseret News reporter Ellen Fagg wrote that scores of doctors had joined the lawsuit. “Dr. Julian DeLia pioneered an intricate laser surgery technique that he performs on unborn babies who have twin-transfusion syndrome,” she wrote. This associate professor of medicine developed a “high-risk, innovative technique to fuse shut placenta cells between twins when the blood flows just one way. Technically, the surgery is against Utah law, which prohibits experimentation on unborn children, except for genetic testing.”
Due to concerns over these types of procedures, the article explained, 177 members of the American College of Obstetricians and Gynecologists had joined the ACLU lawsuit against the new and the previous abortion laws. “The association says the doctors fear prosecution under the criminal statute.”
The next day, May 18, 1991, the Salt Lake Tribune reported that about 34 percent of the active Utah members in the American College of Obstetricians and Gynecologists had voted against joining the lawsuit but were outnumbered by 65 percent of their colleagues. One percent remained undecided. The minority were angry at being outvoted.
The newspaper cited Parish’s belief that the state had declared “open season on doctors.” According to Parish, “Even by taking away the homicide penalties in the last legislative session, the law can still [p.159]imprison doctors for up to five years.”
E. Reed Heywood, chief of obstetrics at LDS Hospital, objected to Parish’s characterization. “I agree with the law,” he told the newspaper. “For the twenty years I’ve practiced medicine, I’ve believed a woman should have an abortion only for rape, the life or health of the mother, or grave fetal defects.”
The article continued: “Dr. Heywood says he also objects to the Utah medical organization joining the lawsuit. ‘I don’t want my name associated with it, and I don’t want to be a part of any lawsuit that has anything to do with the ACLU.’” Nevertheless the article cited ten doctors who had joined the lawsuit as individuals, claiming their patients included women who had been impregnated as a result of rape or incest but were unable to report the crime, women carrying anomalous fetuses, women needing experimental fetal treatment, battered wives, and women being aided by fertility drugs.
Words flew between doctors now, as well as between attorneys. While the contested procedures would have an impact on families’ options, one doctor told the newspaper that restricting medical procedures would not necessarily have the desired effect of ceasing abortions. “‘Women who believe that their pregnancies endanger their physical or mental well-being will find a way to obtain abortions regardless of the law,’ said Utah Women’s Clinic physician Madhuri Shah,” adding: “And worse, ‘they will abort themselves or turn to the back alley for illegal abortions.’”
The ACLU importuned federal court to add other plaintiffs to its lawsuit. “Jane Freedom” was hoping to “save her diseased unborn child with experimental drugs,” according to a Deseret News report, and “Julie Spouse” did not want her estranged husband informed of her abortion.
Quickly a state official objected to the pseudonyms used in the lawsuit, and the matter went before federal judge Thomas Greene, presiding over the case. The ACLU claimed the pseudonyms were neither “impertinent” nor “scandalous.” The attorneys wrote: “Liberty’s right to name herself is a freedom of speech protected by the First Amendment.” They explained that the “anonymous woman who chose the name Liberty eschewed a pseudonym like Doe precisely because [p.160]that name, rather than being neutral, has connotations of weakness and victimization with which she does not want to be associated.” Ultimately the lawsuit became known as Jane L. v. Bangerter.
Religious leaders joined the women, doctors, and counselors named in the lawsuit, and clergy continued to object to the Criminal Abortion Law on religious grounds. Roy I. Sano, leader of the Rocky Mountain Conference of the United Methodist Church, spoke in Salt Lake City in May and claimed that the new law overrode religious perspective. “Governmental laws and regulations do not provide all the guidance required by the informed Christian conscience,” he said. “Therefore, a decision concerning abortion should be made only after thoughtful and prayerful consideration by the parties involved, with medical, pastoral and other appropriate counsel.”
Oritt and Lundgren worked long hours throughout 1991, producing a lengthy pre-trial document summarizing the testimony of forty prospective witnesses and listing more than 280 exhibits. The state’s attorneys, the affiliate newspaper reported, “who had previously accused plaintiffs’ attorneys of withholding information, filed a much more limited document with the court.” Oritt estimated he donated $90,000 in fees to the case and Lundgren between $40,000 and $50,000.
In the midst of the fray, the ACLU Reporter reprinted a Pat Bagley cartoon from the Tribune. It showed Bangerter and legislators loading a missile with a beehive logo and labeled “abortion bill” on to a truck marked “Anti-Roe v. Wade Super Patriot Missile.” Said the governor to an observer, “It’s never been tested, but with my luck it will reach the Supreme Court and cost a million bucks.”
Ironically, the controversy around the abortion issue would convince one frequent visitor to Salt Lake City that this was a place she could live. Formerly a social worker in Wisconsin, Carol Gnade (pronounced with a hard “g” to rhyme with “karate”) frequently visited a friend, Peter Boam, whose work had recently relocated him to Utah. Gnade did not originally think she could make a home in the Beehive State. “Too many white people,” she would explain, though Anglo herself.
“Then I came one weekend when they were having one of the first [p.161]abortion rallies. As I listened to the speakers, I realized there were activists here and people interested in the same issues I was. One participant was also on the ACLU board of directors. I said, ‘I think I can make this decision now.’”
Gnade called the ACLU office and volunteered her services. As she recalled, “the secretary said, ‘Could you come in tomorrow morning?’” She found that Parish needed help organizing the 1991 annual dinner, so Gnade began coordinating volunteers. Sometimes she worked as many as fifty hours a week as a volunteer and then stayed in touch with Parish from Wisconsin.
A major grant allowed the Utah ACLU to hire its first staff attorney, Kathryn Kendell, at the outset of 1992, and funded Gnade as the first development director. By this time Parish was so embroiled in controversies that Gnade’s job became getting the finances in order and running the office. Consultant Barry Shane, whom Parish had met at an ACLU conference in Vermont, helped develop a fund raising model for Utah. The affiliate budget, as well as the expenses, had increased dramatically, and Gnade now applied her skills to organizing and managing the resources.
Kendell recalled her initiation as staff attorney with a “climb up a very steep learning curve because the issues were all over the map. Within a four hour period,” she said, “I’d be consulted on church/state, police abuse, sexual harassment, free speech, and prison violations. I had to have answers to all of those issues. I felt spun around.” She depended upon cooperating attorneys such as Brian Barnard, Ross Anderson, and Dave Eckersley while she found her moorings. However, her own background and experience also provided strength.
Kendell had graduated from the University of Utah Law School in 1988 with fifteen years of debate experience. She began private practice handling employment, domestic, and personal injury issues, though constitutional law was her primary interest—a type of law raised only occasionally in the corporate world. In a couple of years, to her dismay, Kendell had found herself getting bored with her law practice.
“This can’t be,” she had told herself. “I need to do this for another forty to fifty years.” She watched her peers thrive on the same cases that sparked less and less interest in her and finally concluded that “for me, [p.162]law alone was not enough.” The new staff position at the ACLU seemed ideal.
Her interest in civil liberties had begun early. In 1978 she had been in Evanston, Illinois, for a national high school debate tournament and heard news reports of the American Nazi Party march in nearby Skokie. She found the Nazis objectionable but “was intrigued by the idea of supporting everyone’s right to free speech, even if you disagreed with them.” That incident made an impact, and on the way to the airport Kate had pointed out the town of Skokie to the cab driver.
That split between liberal and libertarian viewpoints would continue within the ACLU, and so would Kendell’s fascination with the issues. By the time she became staff lawyer, she was watching the national debate on pornography. The ACLU stand, vigorously promoted by President Nadine Strossen, was that the First Amendment was absolute in allowing the market and other forces to control pornography, rather than censorship. However, many within and without the organization disagreed because women, children, and sometimes racial minorities were exploited and debased in that medium.
“It’s a tension nationally,” Kendell said, “maybe a dynamic. I think the debate is good. Disagreement is one of the most charismatic things about the organization. There’s not really a party line. The board may vote on an approach, but there’s always room for dissent. Some say, ‘Oh, the organization is coming undone and losing its way,’ but I see it as a necessary dynamic.”
Kendell immediately became embroiled in the 1992 legislative session in which proposed amendments to the Criminal Abortion Law were hotly contested. On January 25, 1992, reproductive rights protesters filled the Capitol Rotunda. As part of the Utah Pro-Choice Coalition, the ACLU lent its efforts. The coalition included Planned Parenthood, the League of Women Voters, Network magazine, the NOW Utah chapter, the Utah Women’s Health Clinic, the National Abortion Rights Action League, the Salt Lake branch of the National Council of Jewish Women, the Coalition of Labor Union Women, the Utah Women’s Political Caucus, the Socialist Workers Party, Utahns for Choice, and the YWCA.
During a planning meeting, Gnade had suggested that the coalition [p.163]find a pro-choice Mormon speaker. That week she picked up the telephone and began calling BYU faculty until she reached English professor Cecelia Konchar-Farr, who had helped BYU coeds organize against campus rape. “Well, maybe it’s my time to do this,” Gnade would remember her saying.
Other speakers included Debara Threedy, a University of Utah law professor and a member of the ACLU board; Kathy Warner, who led the group in “singing for our lives”; and Annette Cummings, representing Utahns for Choice. The affiliate’s winter 1992 Reporter ran a list entitled “Legislators Who Voted Pro-Choice” and reported the pro-choice rally as its lead story.
“Almost 4,000 were in attendance, nearly double that of last year’s rally,” the article stated. “Young and old lined the balconies on every floor to show their support for pro-choice political candidates and their extraordinary list of guest speakers.…”
Konchar-Farr would suffer serious repercussions as a result of her participation. Quickly called to account by LDS authorities, she was compelled to decline further speaking invitations related to the abortion question but did allow her comments at the rally to appear in Network magazine. The following year she would be fired from BYU for “citizenship” reasons, following a third-year academic review, despite outstanding scholarship. She hired an attorney and appealed the decision, finally reaching an undisclosed settlement.
When Gnade later ran into Konchar-Farr, she reminded her of their acquaintance. “Oh, right,” Konchar-Farr quipped, “you’re the woman who helped end my career.”
The firings of Konchar-Farr and another BYU professor after speaking on sensitive issues highlighted a widespread purge of Mormon writers, intellectuals, historians, and feminists. While many of these people would rest their outspokenness on First Amendment rights, and some would call on the ACLU, the affiliate took no issue with the inner workings of any religion.
Konchar-Farr was not the only Mormon to find herself among “strange bedfellows” around the abortion issue, a fact that religion writer Peggy Fletcher Stack gleaned for Salt Lake Tribune readers. She reported that Apostle Dallin Oaks, too, found himself among surprising [p.164]allies. “Abortion Issue Pits Mormons, ACLU Against Catholics” read a front page headline on May 14, 1992. The article began: “It started off as a fight for religious freedom. Now the issue is abortion and it has forged an unusual alliance: The LDS church and the ACLU versus the Catholic church.”
The primary issue involved an Oregon lawsuit that found its way to the Supreme Court after two members of the Native American church were found using peyote in religious meetings. The ACLU befriended the case, which later led to the Religious Freedom Act. Various denominations lent their support, including the LDS church which had no sympathy for the use of peyote but was interested in protecting religious freedom. The Roman Catholic church, however, the Tribune article explained, “saw a potential loophole: the bill could be used by abortion-rights advocate to claim they were having an abortion for religious reasons.”
Nadine Strossen, ACLU president, testified in Washington, D.C., in concert with Oaks, the Tribune reported. A parallel story in the Deseret News reported Oaks’s testimony without mentioning the ACLU or Strossen’s testimony. The first woman president of the ACLU, Strossen would later visit Utah and speak in several cities along the Wasatch Front. In 1993 the Religious Freedom Act became law, encompassing a far broader scope than the question originally raised by Native Americans.
Even as issues of church and state swirled around the abortion issue nationally, the Utah ACLU met with a significant defeat that spring. On April 21, 1992, Judge J. Thomas Greene froze the privacy issues in the lawsuit until Planned Parenthood v. Casey could be decided by the U.S. Supreme Court. He ruled against the ACLU, Planned Parenthood, and pro-choice plaintiffs on several counts. “In this case there is no free speech violation because there is no free speech right to solicit criminal acts (abortion),” he said, regarding those counseling women on abortion.
“I hope the above ruling by Judge Greene sends shivers up your spine and rattles your bones,” Parish wrote in the summer Reporter. “If Greene’s ruling is allowed to stand, anyone who tries to help a woman or girl could be charged with conspiracy to commit a felony.” This could [p.165]include family, counselors, or individuals “who tell women where to get Abortions—legal or illegal—or who actively participate, such as in driving the ‘getaway car.’…” Clinic advertising might well become illegal.
Furthermore, Parish continued, Greene had “denied religious freedom and freedom of conscience” for Utahns who affiliated with a religion other than LDS, particularly those “who believe it is their moral and spiritual right to choose abortion and their pastoral duty to counsel their members concerning abortion.” The ACLU had argued that the law’s similarity to LDS policy constituted an establishment of religion within the state. Greene had ruled against this as well, saying that the abortion ban was “consistent with society’s traditional moral framework.”
Greene refused to hear testimony from a long list of witnesses, including experts, religious leaders, and women who had experienced illegal abortions or problem pregnancies. ‘‘The judge said he already had more information than he needed to make up his mind,” Parish wrote.
These losses represented skirmishes compared to the central battle around the issue of privacy, which ended with the opposite result. The tensely-awaited Casey decision by the Supreme Court brought legal clarity to Utah. The high court was far more conservative than when Roe v. Wade changed the political landscape, but the justices decided to keep abortion legal nonetheless. In deciding Planned Parenthood v. Casey, the court upheld the core of Roe v. Wade, though it maintained abortion was not a fundamental right. States could not prohibit abortion in the first trimester during pre-viability but could regulate it. A twenty-four- hour waiting period was allowed, spousal notification was not. The court later refused to reinstate a Louisiana law that criminalized most abortions.
The message was clear in Utah. With this decision, the core of the Criminal Abortion Statute crumbled. “The Supreme Court is not divine, just supreme,” quipped former governor Norm Bangerter. In his opinion, the Casey ruling took aim directly at the Utah law and made it clear that the Supreme Court would not reverse Roe v. Wade. “This was our attempt to do that.” Although Bangerter did not like calling the Utah bill [p.166]a ban, he agreed that the high court’s ruling differed significantly by allowing abortion with restrictions rather than disallowing abortion except in select instances.
So significant was the Casey ruling that the ACLU affiliate celebrated with considerable relief. Not surprisingly, on December 18, 1992, Greene struck down the core of the Criminal Abortion Statute, holding that any ban on abortion during pre-viability was clearly unconstitutional. Greene also struck down the spousal notification provision of the Utah law but upheld medical restrictions and choice of the method best for the fetus in post-viability abortions. He then adapted the exemptions in the Criminal Abortion Law to fit post-viability abortions. The ACLU and the Center for Reproductive Law and Policy readied an appeal on these points.
During 1992 Michele Parish’s honors and efforts continued to accrue. They ranged from becoming an alternate representative to the pensions committee at the national ACLU executive directors’ conference to being elected to the Utah Women’s Forum. Her picture and a question-answer profile appeared in Salt Lake City magazine. In it, Parish described herself as “a warrior.” The most challenging part of her job?—“That it can make a difference, and it is always in the middle of whatever is really hot. I like being in the eye of the storm.” She said the secret of her success involved being “coached by people who may very well consider themselves my enemies. I listen to them and get value from what they’re saying. Also, I don’t sleep.”
Her biggest pet peeve? “Being misquoted.” When asked what three people in history she would like to have dinner with, she named Susan B. Anthony, Thomas Jefferson, and Mary Magdalene. Her greatest passion?—“Freedom and fairness for everybody everywhere.”
As the year climaxed with a U.S. presidential election, the mood of the Utah affiliate shifted as well. Significant victories, a high public profile, substantial donations, a dramatic increase in membership, and soaring costs had transformed the organization. No longer did it run on a shoestring. The board no longer wanted to be in a reactive stance either financially or politically. As Gnade sorted financial affairs, Parish felt increased pressure from the board to pay more attention to administra-[p.167]tion and less to political warfare.
In November 1992, when Democratic candidate Bill Clinton won the presidency, the effect nationally and locally was enormous. The eight-year assault on civil liberties appeared to be over. Civil libertarians throughout the country breathed a collective sigh of relief.
In Utah the board of directors turned its attention to solidifying and extending the organization’s growth. If administration and fund raising were hallmarks, Parish decided, the position of executive director did not “sound fun any more. I’m really more of an activist.” Also, with a staff attorney on board, the executive director no longer worked with cooperating attorneys in the same way. “Working on cases was my favorite part.” Attracted by the promise of the Clinton administration, Parish told the board she planned to move to Washington, D.C., after the first of the year.
By her tenure’s end, Parish’s office walls were covered with cartoons and awards. A colored postcard hung directly behind her desk. Taken at night, it juxtaposed the illuminated State Capitol and LDS temple, visually combining the eminent symbols of church and state. “I meditate on this,” she said wryly. She noted that prison reforms were underway, the issue of school prayer resolved, and the question of prayer in government meetings before the Utah Supreme Court; lastly, with his ruling overturning the Criminal Abortion Law, Judge Greene had handed Parish a significant farewell present.
Shortly before leaving Utah, Parish recalled the “vision” she received at her first biennial ACLU conference. “This last year I’ve used the keys of knowledge more than the sword, and that’s been a different kind of learning,” she said.
The media responded to Parish’s exit with several features. In one photograph, printed on the front page of the local section of the Tribune, Parish was shown against the wall bearing her collection of framed cartoons. Her arms were spread and drooping in a mock-crucifixion, and she was laughing.
Cartoonist Calvin Grondahl sent her a final farewell in Ogden’s Standard-Examiner. It showed a family praying in their living room, a framed print of the LDS temple on the wall, the mother pregnant, and two children with bowed heads. The baby, whose diaper drooped, [p.168]peered out the snowy window at Parish, toting her suitcase labeled ACLU. The caption read, “We give thanks for the snow’s coming and Michele Parish’s going.”
Former board president John Morris later noted the impact of the affiliate’s most controversial executive director. “Michele’s particular personality and style reshaped the conflict in a way that had a very positive impact on the organization. It’s different now, and that’s good. The media exposure and the litigation successes gave the organization a kind of credibility that now makes it possible to move the debate without the same pyrotechnics.”