State Supreme Court to decide whether to take up abortion case

The Wyoming Supreme Court has until Jan. 9 to decide whether to take up the legal challenge to Wyoming’s abortion “trigger” ban. 

Filings from Dec. 9 show the case has been docketed, assigned a number and the state Supreme Court had 30 days to decide whether to hear it. Among those filings were 12 constitutional questions for the five supreme court justices to potentially consider.

Ninth District Judge Melissa Owens enumerated the questions in an order issued following a Nov. 21 hearing. The questions of law to be answered include whether the abortion ban bill as codified violates the Wyoming Constitution’s Article 1, sections 2, 3, 6, 7, 18, 33, 34, 36, 38 and Article 21, section 25. Her order also asked the Supreme Court to answer whether the abortion ban bill is “unconstitutionally vague on its face” and whether it violates a Wyoming citizen’s right to privacy.

The odds

Because the state Supreme Court is the only appellate court in Wyoming — where people can appeal lower-court decisions — it’s very likely to take on the case, Cheyenne attorney Abigail Fournier of law firm Steiner, Fournier and Zook said. 

The court, she added, will also likely consider all 12 constitutional questions outlined in the documents because all are likely to be brought up in the briefs written by those working to stop Wyoming’s abortion ban.

Why it matters

If the state Supreme Court takes on the case, it could create precedent for how certain articles of the state constitution are interpreted. That includes a constitutional amendment approved in the 2012 election by more than 70% of Wyoming voters that states “Each competent adult shall have the right to make his or her own health care decisions.” 

The history

Wyoming passed a “trigger law” in March 2022 to ban abortion in most cases if the U.S. Supreme Court overturned Roe v. Wade. SCOTUS effectively overturned Roe in June, clearing the way for the state’s ban to take effect in July with certain exemptions for rape, incest or the life of the parent. Three women and two pro-choice groups sued the state to overturn the legislation, and Judge Owens in late July granted a temporary restraining order followed by a preliminary injunction to effectively freeze the abortion ban’s implementation. 

More recently, two legislators and a right to life group tried to join the suit, but were denied. Those parties could try to file amicus briefs in support of the defendants before the state Supreme Court, but only if the justices allow it. 

What’s next

If the Wyoming Supreme Court doesn’t take on the case, the suit will head back to district court. If it does, it will initiate a 45-day period in which the plaintiffs can file a brief, followed by 45 days allotted to the state defendants to respond. There could potentially be even more time set aside for filings after that, Fournier said, depending on whether there are amicus briefs or more information to respond to.

The state’s five high court justices will then either make a decision in the case or hear oral arguments, the latter being more likely, according to Fournier. The Supreme Court will likely broadcast those on its website. 

Since both parties in the case want it to move forward quickly, Fournier said, she expects the matter to be settled in less than a year. 

Legislators could reconsider changing the abortion trigger law this session to remove exemptions for rape and incest, according to recent reporting in The New Yorker. 

Wyoming’s Supreme Court justices include three women and two men: Chief Justice Kate M. Fox, Justice Keith G. Kautz, Justice Lynne Boomgaarden, Justice Kari Gray and Justice John G. Fenn.