Jackson judge explains why she halted Wyoming’s abortion ban

Ninth District Court Judge Melissa Owens explained her reasoning this week for granting a temporary restraining order on the state’s abortion ban last month. 

Owens called injunctions “extreme remedies” for which plaintiffs — in this case a group including women and healthcare professionals fighting to maintain abortion access — have to show “probable success” in the case and “possible irreparable injury” if the law isn’t enjoined. 

Owens found the plaintiffs have met those criteria.

While plaintiffs claim there are several reasons the law is unconstitutional — alleging it’s an establishment of religion and is too vague — Owens stated they had probable success arguing that it violated Article 1, Section 38.

“Each competent adult shall have the right to make his or her own health care decisions,” it states. 

The law restricting abortion in this case is House Bill 152 – Life is a Human Right Act. It states specifically: “Regarding article 1, section 38 of the Wyoming constitution, abortion as defined in this act is not health care.”

However, there were several issues with this, Owens stated, including that the law contradicts itself. It uses medical terms to define abortion and states a doctor would use their medical judgment to determine whether the procedure is necessary to save a mother’s life.

Owens also noted that it was the judiciary’s role to interpret the Constitution and whether phrases like “health care” apply, not legislators’.

“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. 

Article 1, Section 38 of the Wyoming Constitution also states that “The legislature may determine reasonable and necessary restrictions on the rights granted under this section to protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution.”

Owens acknowledged that section, but stated that none of the reasons listed in the law rise to the level of “reasonable and necessary.”

Defendants had argued that allowing abortion to be considered health care would allow citizens to make other illicit health care decisions for themselves, like smoking marijuana for pain.

It’s a “misplaced” analogy, Owens stated, writing that there are many ways to treat pain that aren’t marijuana, but there is only one procedure to end a pregnancy. 

Irreparable injury

Defendants in the case, which include the attorney general and the governor, argued that any harms the plaintiffs outlined would either affect unnamed people not involved in the case or were too speculative. 

Owens disagreed in her filing, stating there could be irreparable harm by way of taking away a constitutional right. She noted the case Heideman v. South Salt Lake City. 

In that instance, the 10th Circuit found that an ordinance requiring performers to wear G-strings and pasties violated a first amendment right, paving the way for an injunction.

“What makes an injury ‘irreparable’ is the inadequacy of, and the difficulty of calculating a monetary remedy after a full trial. Any deprivation of any constitutional rights fits that bill,” the 10th Circuit stated. 

There would be irreparable harm to female plaintiffs who plan to get pregnant, Owens found, because they wouldn’t be able to exercise their right to make their own health care decisions during that pregnancy. 

There would also be irreparable harm to the doctors who provide the procedure and the organizations that promote abortion access, Owens stated. She noted the loss of goodwill, funds, patients and clients they could face.

This case is expected to end up before the Wyoming Supreme Court, which could come to a different conclusion when considering the injunction. 

Status quo

A temporary injunction, like the one Owens justified in the filing, maintains “the status quo,” which has been interpreted as the “last uncontested status” of an issue, Owens stated. 

In this case, Owens interpreted it to mean the state of affairs before the U.S. Supreme Court struck down Roe v. Wade, triggering a ban on abortion in Wyoming — and a new lawsuit.

The injunction lasts until “dissolved or modified by Court order.” Outside forces, including an ongoing legal challenge in the federal court system to the FDA approval of certain abortion-inducing medications, could also affect abortion access in the state.