Medication abortions will become illegal in Wyoming on July 1 unless a group suing the state convinces the judge to block the ban in court. Their request for a temporary restraining order against the law met its first challenge Thursday when defendants filed a rebuttal to the plaintiffs’ argument.
The defendants, which include Wyoming’s governor and attorney general, argued in Thursday’s filing that the plaintiffs’ failed to provide adequate legal analysis and that their testimony isn’t legally relevant.
The rebuttal also reasserts a central argument from the ongoing defense of the state’s near total abortion ban — that abortion isn’t health care and therefore isn’t subject to Article 1, Section 38 of the Wyoming Constitution, which states, “Each competent adult shall have the right to make his or her own health care decisions.”
Ninth District Court Judge Melissa Owens, who is presiding over the case, has already made her skepticism of that reasoning clear. “The Court cannot find that a procedure that requires medical expertise, the prescription of medications and drugs, the use of reasonable medical judgment, which must also include medical opinions on the health of the pregnant woman and the fetus, is not a health care procedure,” she wrote in explaining her decision to halt the near total ban.
Wyoming is the first state to pass a ban on medication abortions. While the ban doesn’t specify names of medications, it states “it shall be unlawful to prescribe, dispense, distribute, sell or use any drug for the purpose of procuring or performing an abortion on any person.”
The state’s other, near-total ban is already under such a restraining order, which went into effect in March.
The history
Similar to the near-total ban, the medication ban would strip those seeking abortions of their constitutional right to make a health care decision, the plaintiffs argue, citing the Wyoming Constitution.
Judge Owens should take the history and intent behind Article 1, Section 38 into consideration if the language is ambiguous, the defense states, or may do so even if she finds the meaning of the law to be clear. That intent, the filing states, was to contradict federal mandates in the Affordable Care Act — better known as Obamacare.
The lawmakers and voters made it clear that they were rebuking federal lawmakers and the ACA with the passage of their constitutional amendment in 2012, defendants argue.
To back its claim that voters understood this intent the defendants cited a Secretary of State voter’s guide, a statement by a Constitutional expert and language in newspapers.
The language on the ballot doesn’t mention the federal government or the ACA, though. As the state notes in its filing, the language before voters was:
“The adoption of this amendment will provide that the right to make health care decisions is reserved to the citizens of the state of Wyoming. It permits any person to pay and any health care provider to receive direct payment for services. The amendment permits the legislature to place reasonable and necessary restrictions on health care consistent with the purposes of the Wyoming Constitution and provides that this state shall act to preserve these rights from undue governmental infringement.”
Health care?
Even if the court finds that abortion is health care, the defendants argue, there are still several reasons not to issue a temporary restraining order. Section 38, for example, doesn’t give patients the right to access certain kinds of health care, they state.
“As consumers of medical services, patients have no direct role in determining what medical services legally are available,” the filing states.
“[T]o say otherwise would be to say that the Wyoming Legislature and the voters intended to delegate a significant aspect of the Legislature’s police power to competent adult Wyoming citizens.”
Defendants in Wyoming suit over abortion bans
Instead, defendants argue the Legislature has the constitutional right to determine “reasonable and necessary restrictions” to individuals’ health care decisions.
“[T]o say otherwise would be to say that the Wyoming Legislature and the voters intended to delegate a significant aspect of the Legislature’s police power to competent adult Wyoming citizens,” the filing states.
If abortion is considered health care, defendants also argue that a woman’s decision to abort a pregnancy is not solely her own, but also one that potentially affects a viable fetus. Defendants cite provisions under the state’s abortion bans to defend this view, including legal protections that would be provided to the unborn if these bans were to go into effect.
The state’s arguments went on to include: Plaintiffs wouldn’t face direct or imminent injuries if the law were to go into effect, the Legislature’s creation of the law was necessary and reasonable, and that the law wouldn’t restrict rights in all circumstances.
To read the state’s entire reply, which includes many other arguments, go here. To read plaintiffs’ memo in support of a temporary restraining order, go here.
Wait…. Didn’t conservative “freedom” caucus members say on the floor of the legislature that children are the property of their parents? Maybe only when child marriage is at stake, but not when a woman wants to make her own health care decisions. Hmmmm …. More double speak from the Big Brother who claims to want small government!
Hypocrisy anyone????
Christians believe that life begins at conception.
As America [Wyoming] slips father away from its Christian origins the unborn are under attack but that is to be expected.
Not everyone is a christian.
Women are under attack.
LGBTQIA+ are under attack.
Diversity is under attack.
Inclusion is under attack.
Common sense is under attack.
Basic decency is under attack.
Tolerance is under attack.
White christian nationalists are to blame.
Not all Christians have any such believe as to when life begins. I certainly do not believe that. Many Christians believe the world is only 6,000 years old and that Noah survived a world-wide flood. Thankfully we do not base public policy on those beliefs either.
You’re free to believe whatever religion you want. But, you are not free to impose your religious beliefs onto other.
“When you understand why you dismiss all the other “gods”, you will understand why I dismiss yours” -Stephen Roberts
Jim Maves, I’m a Christian and I don’t believe that. Women’s healthcare should be up to WOMEN, and whether or not to continue a pregnancy to term, should be the right of the one that is pregnant! Period!
If abortion decision making is taken away from WY women it will just trigger another reason why young people leave the state. Family planning and the rights of women are both issues of concern for young people.
So, few jobs with a future, reduced healthcare, and the state trampling the rights of women is a formula for WY decline. Hey WY do you think if you prevent abortions there will be more population…lol
This is as regressive and short sighted as it gets.
Actually, no. Short-sightedness would be wanting abortion legal in Wyoming but not stopping to think that half of the children aborted would have grown up to be women. “Lol”. Not.
Actually, no. Short sightedness is making a women have a child that’s not wanted.
I cannot imagine a more personal health care decision than a woman deciding to take an abortion pill. We Westerners have long believed in the principle of libertarianism —the freedom to make our own decisions with as little governmental interference as possible. How can the Wyoming legislature turn this principle on its head and outlaw personal health care decisions made in our own home? I predict the judicial system will deal with this law in the way they have recently dealt with it in the non abortion pill context -declare it invalid and against our state constitution
Kiss! The abortion issue belongs on the 2024 election ballot. In a true democracy the majority rule. We the people should decide this issue. While we’re at it, we should also add Medicaid expansion.
“Judge Owens should take the history and intent behind Article 1, Section 38 into consideration…..” Another hypocritical statement by our christian nationalist leadership…Gov. Gordon did not take this posture when Alito and the rest gutted the Clean Water Act protections in the recent Sackett case. Hypocrisy and lying is okay for those doing god’s work.
Repeat this sentence out loud ““As consumers of medical services, patients have no direct role in determining what medical services legally are available,” the filing states.”
That is some really ignorant stuff. Republican logic…Parents have every right to make their children ignorant but absolutely no right in what is medically legal? Hypocrisy again.
Instead, defendants argue the Legislature has the constitutional right to determine “reasonable and necessary restrictions” to individuals’ health care decisions.
Now I agree with this statement but this only applies to decisions that protect all of society not the individual. For instance it was reasonable and necessary to have masking rules and require vaccinations for a disease that would impact all of society, but it is not reasonable and necessary to ban a procedure that impacts the “competent adult”.
Dobbs was a horrible decision as it stripped a right to make private decisions about whether I could bring a citizen into this Republic. My neighbors and therefore the state has no business in making the decision for me. Roe was wrongly decided it is clear as the right to privacy on whether one is pregnant should hold all through pregnancy.
Wyoming is wasting money fighting a legitimate drug for providing healthcare to women as well as trashing constitutional rights. We live in really ignorant times.
Well said
Great letter! It should be presented to the judge and made part of the court record so it would accompany all the filings of the state appeal