Ninth District Judge Melissa Owens on Wednesday granted a preliminary injunction in a lawsuit over Wyoming’s abortion “trigger law,” effectively preventing the state’s abortion ban from being enacted. Owens issued her motion at 12:09 p.m., just minutes after a temporary restraining order lapsed and a day after hearing lawyers’ arguments on the matter.

The injunction will likely remain in effect until the final merits of the case are resolved, which could take months if the issue makes its way to the Wyoming Supreme Court as expected. 

In her order, Owens wrote that plaintiffs met their burden in establishing irreparable harm if the abortion ban were to go into effect. Plaintiffs Dr. Giovannina Anthony and Dr. Rene Hinkle, both OB-GYNs, could be subject to “felony prosecution, loss of professional licensure, and up to fourteen years of imprisonment for providing evidence-based health care to her patients in need of abortion services,” the judge wrote.

Owens also addressed the potential merits of the case, writing “the Court could find that the Wyoming Constitution affords all Wyoming citizens with a fundamental right to make their own health care decisions and that includes a Wyoming woman’s right to make her own decision regarding abortion.”

Plaintiffs in the case include a pregnant woman, a woman of child-bearing age, the two OB-GYNs and two nonprofits that aim to help women access abortions. 

During Tuesday’s hearing, Owens expressed particular concern over the abortion ban’s exemptions. It remains unclear how an individual might obtain an abortion under the rape and incest exemptions without running afoul of a prosecutor, she said. 

She noted that if a rapist’s conviction is required for a woman to obtain a legal abortion, that process would likely take longer than the pregnancy itself. 

Wyoming’s Legislature passed a “trigger ban” law this spring. The U.S. Supreme Court in June overturned Roe v. Wade, and Gov. Mark Gordon certified the state’s abortion ban law on July 22.

Unlike the July 27 hearing during which she issued a temporary restraining order, Owens did not rule from the bench on Tuesday. About 12 people observed from the gallery, including a clergyman who sat in the back row.

‘A quilt’ of protections

Plaintiffs’ lawyer John Robinson argued the abortion ban would pit the interests of physicians trying to avoid prosecution against those of patients seeking care.

Irreparable harms to patients and doctors if the ban is enacted had been clearly established, Robinson said. 

When granting a preliminary injunction, the court must consider the “substantial likelihood of success on the merits,” Robinson said. He pointed to the temporary restraining order previously issued by Judge Owens as proof plaintiffs had accomplished that. 

In her order granting the TRO, Owens wrote, “All of Plaintiffs’ challenges raise important legal questions involving constitutional rights and require statutory and constitutional interpretation.”

Wyoming Ninth District Court Judge Melissa Owens issues a temporary restraining order July 27, 2022 in Jackson, Wyoming, preventing the state’s law banning most abortions from being implemented. (Bradly J. Boner/WyoFile/Jackson Hole News&Guide/pool)

Robinson reiterated a litany of enumerated and unenumerated constitutional rights the abortion ban would violate. He argued constitutions are “a grant of power,” not a “limitation on rights.”

He zeroed in on the right to privacy. 

“Wyoming’s commitment to individual privacy interests is established,” Robinson said. “We’re not just talking about an invasion into a doctor’s office. These are intimate decisions. These are decisions that are made in a family setting in a home, over a dining room table, in the living room, maybe on walks, these are personal family decisions.” 

In order to restrict a right, Robinson said, the state needs to show it has a compelling need to do so and that legislators restricted that right in a “narrowly tailored fashion.” The defense had failed to do so, Robinson argued. 

The Wyoming constitution should be read as one document, he said. “You can’t single out one law. They are like a quilt with multiple layers, and the multiple layers of quilts are there to protect all of us.”

“Courts must be and are, whether willingly or not, the arbiter if there is an unwarranted invasion of the above rights mentioned,” Robinson said. “This case is about our clients’ right to be left alone in their homes, in their families, in their doctor’s offices.”

The two constitutions 

Attorney Jay Jerde represented the state of Wyoming, Gov. Gordon and Attorney General Bridget Hill at the hearing.

Jerde argued the plaintiffs had unsuccessfully attempted to shift “the burden of proof” to the state, and that simply asserting abortion is a fundamental right wouldn’t cut it.

The Wyoming Constitution doesn’t provide greater protections than the U.S Constitution, and that while there exist a few outlier cases where Wyoming’s high court granted more generous protections, equal protections under the Wyoming Constitution have been brought back in line with the U.S. Constitution, Jerde said. 

Because the U.S. Supreme Court did not find abortion to be a constitutionally protected right in Dobbs v. Jackson Women’s Health Organization, analogous Wyoming clauses (free exercise of religion, substantive due process and equal protections) do not protect the right either, he argued. 

“Abortion is not a fundamental right,” Jerde said. “We know that from Dobbs.”

If plaintiffs want to prove abortion is a fundamental right, Jerde said, they need to show it is deeply rooted in the state’s history and traditions. Jerde noted during the hearing and in his brief that the procedure was banned in Wyoming from 1869 to 1977, when it was repealed four years after Roe v. Wade. This is proof, Jerde argued, that the procedure wasn’t an established part of Wyoming’s history. 

On the ballot

Jerde also rebutted plaintiffs’ arguments that abortion is protected under the health care amendment passed into Wyoming’s Constitution in 2012 which states: “Each competent adult shall have the right to make his or her own health care decisions.” 

He argued the context of the amendment was pushback to the Affordable Care Act, and is unrelated to abortion. Based on the ballot language, he said, “there’s no way you could look at it and know abortion was on the ballot.”

The provision gave Wyoming residents the right to make direct payments to health care providers for legally permissible health care, which the Legislature has the right to determine, Jerde argued. 

Before recapping the state’s position, Jerde said plaintiffs’ claims the state’s abortion ban bill is unconstitutional fall flat because “there’s nothing vague about this statement: ‘no abortion shall be performed.’”

Instead, the exceptions are the vague part of the abortion ban, Jerde said, because they don’t make clear what women and doctors need to do or prove to perform an abortion if a patient’s life is at risk or they have been raped. 

Rather than prevent the abortion ban from going into effect, the court could remove the exceptions instead, Jerde said.

Rebuttal

Marci Bramlet, the plaintiffs’ other attorney, pointed out that the state argued harms her clients will inevitably suffer are legally irrelevant.

That argument rests on “an extreme form of originalism,” Bramlet argued. That logic would allow the Wyoming Legislature the right to prohibit interracial marriage, she said. 

Claiming abortion is not deeply rooted in the history and tradition of the state ignores the availability of early term abortions during the time of settlers, according to Bramlet.

Arguing that women do not have a privacy or property interest in their own bodies, Bramlet continued, “ignores both settled law and common sense.”

“A trespass on one’s body is in fact a crime, that’s what a battery is. That’s what a rape is,” Bramlet said. “My body, my property. My uterus is my property.” 

Jackson OBGYN Dr. Giovannina Anthony, center, listens to oral arguments from Wyoming Special Assistant Attorney General Jay Jerde during a hearing in Ninth District Court on Tuesday, Aug. 9, 2022, in Jackson. (Bradly J. Boner/WyoFile/Jackson Hole News&Guide/pool)

One consequence of the ban is to force women to justify a miscarriage, Bramlet said. In order to prove a miscarriage was not an elected abortion, they would be coerced into waiving their fifth amendment right and their rights to keep medical records private. 

“The questions that the statute creates vastly outstrip the answers that it provides,” Bramlet said. 

Jerde briefly returned to the stand saying, “Clearly both parties have a very different view of who has the burden of proof here.”

Lawyers for Matthew Carr, Teton County Sheriff and Michelle Weber, Jackson Chief of Police, were present but did not make any arguments. 

Sofia Jeremias

Sofia Jeremias reports on healthcare, education and the economy in Wyoming. She received her master's degree from the Columbia Journalism School and previously reported on the West for Deseret News.

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  1. It’s amazing how everyone want to uphold the constitution until the constitution does not support their point of view.

    The US Supreme Court said. It’s up to the states.

    Wyoming citizen’s spoke.

    A good day for Wyoming.
    A great day for the women of our state.

  2. “Abolition of a woman’s right to abortion, when and if she wants it, amounts to compulsory maternity: a form of rape by the State.” -Edward Abbey

  3. Thank you for publishing the official order. I have read it a number of times and find it extraordinarily well written and logical.

    I am most taken with the text’s discussion around “Plain Speaking” and ask those of you voted in favor of the Constitutional Amendment what was your thinking about “healthcare decisions”? I propose if the amendment came forward in 2020 those of you would have supported it for the simple issue of don’t vaccinate me.

    This amendment to Wyoming’s Constitution was no more than a highly political Republican legislated reaction to a don’t tread on me anti big government Affordable Care Act with those supporting the amendment using their votes of record in election races year after year. (And continue to deny Medicaid expansion to 16,000 est. citizens).

    I have been told that under the judicial system that the 1994 failed ballot proposition restricting abortion is not relevant to the current court case. I do find it interesting the abortion restricting proposed statute which reads remarkably like this years trigger bill failed by a margin of 60/40.

    I know that the Wyoming Legislature prides itself on being a “citizen” legislature but too often it’s knee jerk reactions to national political events better describes it as a Amateur Legislature with a very few professional legislators.

  4. Again this is a case of both/and — where two valid, but contradictory, truths can exist at the same time. No one in the pro choice camp disagrees a fertilized egg, if wanted and healthy, will turn into a human being. But until the fertilized egg reaches viability outside the woman’s body, the pregnancy belongs to the woman — not the state, not the anti-choicers, not the religious zealots who believe they have the right to privilege their beliefs over everyone else’s. And for anyone who has never been, nor ever will be pregnant, to argue pregnancy is not a health care issue is more proof of your ignorance and arrogance. If you’re against abortion — don’t have one, and for God’s sake, get a vasectomy.

    1. No, Reverend Kee–I am deeply pro-choice, and I refute your statement that “No one in the pro choice camp disagrees a fertilized egg, if wanted and healthy, will turn into a human being.” In fact, based on the science, as many of the “fertilized eggs” may miscarry, as there is no way to know before implantation. Please read and understand the biology before you presume to make sweeping, inaccurate proclamations.

    2. “If a mother can kill her own child – what is left for me to kill you or you to kill me – there is nothing between.” Mother Teresa

    3. Maybe better said might be – if you are ‘for abortion’ – get a vasectomy – then there won’t be the need for the abortion in the first place. Better yet if you are the female or identify as female and you can’t seem to take the pill or use other forms of birth control that are legal and available – get your tubes tied or whatever they do these days. Then there won’t be a need to even ponder an abortion, right? I do believe in the need for abortion in some rare cases. But it is becoming an easy way out for people who don’t want to have the consequences of unprotected sex or to be inconvenienced by having an unwanted pregnancy. I watched an interview with a woman who had had ‘4’ abortions, and without hesitation said that should she get pregnant again she would have another one. The only thing that bothered her was that when she was a teenager and went with her mother to get her first abortion she wasn’t mentally prepared for all the anti-abortion protesters at the clinic. The person interviewing her was very openminded and non judging about her comments. The people commenting about the interview referred to her as a serial killer. Hmmm .. I’m just curious, but if you had the need to have 4 abortions than maybe you need to look into better birth control methods or get smarter about something. Someone in an earlier WyoFile article talked about the fact that there are too many people on our earth that we are going to run out of food and that having abortions would help with that problem. I agree it would but so would preventing the problem to begin with so that an innocent life isn’t killed. An unborn child has a body too, where does ‘my body, my right’ play into this for them. They have no voice so they can be eliminated and we are all supposed to accept that. I have no religious affiliation so that is not the basis to my thinking. I haven’t attended church in decades. It just seems that preventing the birth to begin with is a much more ‘human way’ to deal with the problem. I used to be pro-choice and felt that a woman should be able to make this choice. Really it will still come to that. We all know that this will win out in the long run. As I said, religion as some seem to think isn’t the only reason people oppose abortions. What changed my thinking on this issue was when I viewed an actual video of an abortion. Prior to that I had no idea what happened the fetus or baby. I never even thought about it and didn’t care. In the video the baby was desperately try to get away from the tool that was going to kill it. I can’t get that image out of my mind. That was a life trying to survive. Oh, yah, as a final thought, there is still something called adoption or is that out of style now?

      1. I twice got pregnant while on birth control. It’s just not that simple. Furthermore, tubal ligation is expensive, major surgery. AND (here’s the kicker) doctors can and do refuse to tie tubes if the woman is under a certain age or hasn’t yet had children. You know why? *Because people like you won’t allow women bodily autonomy!*

  5. Separation of church and state. Simple as that. Otherwise women are chattel and incubators and have no constitutional rights over their own person. In the mean time viagra is still covered by insurance. Rape on.

  6. Abortion is absolute murder of an innocent child. Under no consequences should this child’s life have to end because of an uncaring mother.

  7. This case will very likely go to the Supreme court of Wyoming. It should never be decided by a circuit court. I am very familiar with the arguments on both sides. I have always stated that based on the science a human life begins at conception. Abortion ends that life and the life after and after ad infinitum. To try to define abortion as health care in the case of a healthy pregnancy is delusional. To deny this is to deny science. I stand by that. I also have stated that a right to bodily autonomy of any human being is a right not to be abrogated or abridged. The recent total disregard of the Nuremberg code on human experimentation with FDA authorized but not FDA approved ergo experimental “vaccine” mandates has brought this into clear focus. In the end maybe it comes down to things that are beautiful and things that are un-natural, ugly and abhorrent and who we want to be. I can think of nothing in my life more beautiful than the birth of my children and nothing more ugly than the un natural act of sucking a human being out of the womb and throwing it in the medical trash bin or cutting it up and selling it for its parts. If it is to be “my body my choice” and you are with child and this act remains legal to do which will you choose?