Gov., AG oppose secretary of state’s request to join abortion ban defense

Note: this story was updated at 6 p.m. April 28 to reflect a new trial date over the motion to intervene. —Ed.

Wyoming Attorney General Bridget Hill and Gov. Mark Gordon oppose the secretary of state’s request to join their defense of the state’s abortion ban in an ongoing lawsuit. 

Gordon and Hill, both defendants in the case challenging the ban, claim in a brief filed Tuesday that Chuck Gray doesn’t have legal standing, and that joining the case “in his official capacity” as secretary of state is contrary to Wyoming statutes. 

“Public officers such as the Secretary of State ‘have and can exercise only such powers as are conferred to them by law,’” the filing states, citing the case McDougall v. Board of Land Commissioners of Wyoming. 

“In Wyoming, the powers and duties of the Secretary of State are prescribed by the Wyoming Legislature,” the filing continues. “In his official capacity, Secretary of State Gray cannot intervene in this case unless a Wyoming statute authorizes him to do so.”

While Gray has argued he has standing given his role as successor to the governor and public records custodian, the defendants state neither give him authority to intervene or even participate in the trial.

Plaintiffs fighting for abortion access noted that potential intervenors could request to file amicus briefs in the case if denied the right to intervene. That option would allow them to share their perspective and evidence. 

Gordon and Hill, however, argue that Gray should not be allowed participation of any kind. 

Ninth District Court Judge Melissa Owens has scheduled a hearing for June 2 at 10 a.m. to consider arguments from all sides for and against admitting the potential intervenors. That hearing was originally scheduled for late May, but was moved at the Plaintiff’s unopposed request.

The governor and attorney general don’t oppose Right to Life of Wyoming or Reps. Rachel Rodriguez-Williams (R-Cody) or Chip Neiman’s (R-Hulett) requests to intervene in the case. The defendants do, however, “disagree with the intervenors’ apparent belief that this Court should hold an evidentiary hearing or a formal trial in this case and do oppose this Court granting them intervention based on the premise that such a hearing or trial is necessary.”

The case only involves “questions of law,” the filing states, which precludes the need for such a hearing or trial. That suggests the judge should only consider whether the new abortion bans are constitutional on their face, excluding information or evidence that goes beyond what’s needed to make that narrow determination. 

Instead, defendants argue, the judge should issue a “summary judgment,” which would limit expenses for all parties.

The potential intervenors — excluding Gray — tried to intervene in the case over the state’s previous ban last year, but were denied. They appealed that decision to the Wyoming Supreme Court, but asked it to be dismissed in light of the 2023 ban that replaced the one from 2022. 

Observers expect the case to ultimately be decided by the Wyoming Supreme Court, regardless of the outcome in district court, where it currently sits.