Utah legislators eye special session, maybe next week. Will it deal with abortion, redistricting?

The Capitol in Salt Lake City is pictured on Monday, May 6, 2024. (Photo by Spenser Heaps for Utah News Dispatch)

No official decisions have been made, but there’s a chance the Utah Legislature could hold a special session as soon as next week as GOP legislative leaders face calls to tackle two key Utah Supreme Court rulings that rankled Republicans.

The day the Utah Supreme Court upheld an injunction blocking Utah’s 2020 trigger near-total abortion law from taking effect while a district court litigates its constitutionality, Sen. Dan McCay, R-Riverton, urged Utah Gov. Spencer Cox and legislative leaders to call a special session so lawmakers could pass a new law.

While the court case on the 2020 trigger law plays out, McCay wants to restrict the time abortions would be legal in the state , possibly to up to six weeks of gestation. Currently, while the 2020 ban is on hold, abortions have remained legal in Utah up to 18 weeks of gestation.

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The other recent Utah Supreme Court decision that disappointed Utah Republican legislators came last month, when the court unanimously ruled a district court erred when it dismissed the claim that the Utah Legislature violated the Utah Constitution when it repealed and replaced Better Boundaries’ anti-gerrymandering voter ballot initiative to alter Utah’s redistricting process.

Both House Speaker Mike Schultz, R-Hooper, and Senate President Stuart Adams, R-Layton, at the time issued a scathing statement condemning the ruling in the redistricting case, saying the ruling effectively made a “new law about the initiative power, creating chaos and striking at the very heart of our Republic.”

On Friday afternoon, the conservative think tank Sutherland Institute issued a news release stating “we understand that a special legislative session may be scheduled next week,” and it urged legislators to consider a constitutional amendment to ask voters to weigh in on the Utah Supreme Court’s interpretation of the Utah Constitution.

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“As decisions are made about what issues may be included, Sutherland Institute strongly recommends the consideration of a constitutional amendment to correct the flawed understanding of the Utah Constitution’s principle of proper exercise of legislative power reflected in the Utah Supreme Court’s recent ruling in League of Women Voters v. Utah State Legislature,” the Sutherland Institute news release said, referring to the redistricting case.

In its ruling, the Utah Supreme Court “determined that laws enacted by ballot initiative were ‘protected from undue … infringement’ from the Utah Legislature,’ Sutherland Institute said. “In effect, the court determined that that Utah Constitution establishes two categories of fundamentally unequal law: (1) laws enacted by the Utah Legislature, which legislators may reform according to the constitutional legislative power vested in them by a vote of the people, and (2) laws enacted by ballot initiative, which legislators are constitutionally barred from changing without court approval.”

The Sutherland Institute release added: “This bifurcated view of Utah law – aside from being constitutionally suspect – makes certain that bad public policy enacted by ballot initiative that fails to serve the public good cannot be corrected.”

The unanimous Utah Supreme Court ruling “reflects a fundamental misunderstanding of the proper exercise of legislative power,” Sutherland Institute said.

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“Any amount of experience with lawmaking quickly shows that good public policy is rarely fully established when a law is initially enacted,” the release continued. “Unforeseen consequences are a natural feature of our system of government — making the power to reform any new law an essential aspect of the reasonable understanding of the proper exercise of legislative power in our republic.”

The Sutherland Institute went on to say the court ruling “violates this commonsense principle of a sound constitutional system, and — as numerous Western states have experienced — will significantly harm the people of Utah as initiative-enacted ‘super laws’ unleash unforeseen consequences on Utahns that legislators cannot correct without fear of violating the court’s ruling.”

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Adams, in an interview with Utah News Dispatch in the wake of the court’s decision, said effectively the same thing, that it created a “whole new statute — a super law — that can’t be changed.”

Calling the ruling an “error” that needed to be corrected, the Sutherland Institute urged the Legislature to “immediately exercise its constitutional authority to place an amendment before voters that would ensure that elected lawmakers and the people themselves can properly exercise their legislative power to reform the law, no matter how that law was enacted.”

A Senate spokesperson told Utah News Dispatch on Friday that lawmakers are weighing the possibility of a special session as soon as next week, but no official call had been issued.

“There are a lot of discussions about the possibility of a special session,” she said in a text message. “Leadership is reviewing the requests, but no decisions have been made.”

Adams issued a statement Friday evening expressing his appreciation for “Utahns and stakeholders engaging and expressing their concerns on this important issue.”

“There has been significant discussion about a special session, and we are carefully considering their requests,” Adams said.

The Senate spokesperson did not immediately respond to questions about whether the special session would include an agenda that would deal with abortion restrictions or action on a constitutional amendment proposed by Sutherland Institute, or both.

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