JACKSON—Declaring that an OB-GYN doctor and a 22-week-pregnant woman “have the most compelling arguments,” Ninth District Judge Melissa Owens granted a temporary restraining order Wednesday blocking Wyoming’s abortion ban from taking effect.
Owens ruled from the bench, saying that Dr. Giovannina Anthony and Danielle Johnson, two plaintiffs who sued the State of Wyoming and associated officials to block the abortion ban, had met their burden in seeking the temporary order. Owens indicated that she intends to set further proceedings to argue aspects of a preliminary injunction as soon as Aug. 8. The temporary restraining order will remain in effect until further court proceedings.
Attorneys for Anthony and Johnson told the judge that Wyoming’s abortion ban, which was set to go into effect today, violated the Wyoming Constitution that guarantees individuals the right to make their own health care decisions.
Abortion is health care, the plaintiffs and their attorneys asserted. It is so defined by several international health organizations and U.S. medical groups.
As health care, abortion is included under the 2012 Wyoming constitutional amendment guaranteeing choice in that arena, the women’s attorneys said.
This year, a decade after the health care constitutional amendment was enshrined, Wyoming legislators passed the abortion ban law, which includes some exceptions for rape, incest and other circumstances. The “trigger law” was contingent on the U.S. Supreme Court overturning the federal constitutional right to obtain an abortion. Gov. Mark Gordon recently certified the law as required.
Owens explained that Anthony and Johnson had met requirements for issuing a restraining order, including the possibility irreparable harm could occur should the abortion ban not be temporarily blocked.
“Dr. Anthony and plaintiff Johnson, who’s 22 weeks pregnant, have the most compelling arguments as to meeting that burden” required to issue the TRO, Owens said. One of those is the possibility that the abortion ban could cause irreparable injury.
Owens went on.
Wyoming’s abortion-ban law does not mention health care or appropriate medical judgement and “creates an ambiguity for not only Dr. Anthony but for the patient that is a possible irreparable injury to the plaintiff,” Owens said.
“If this law … continues to move forward [Anthony] has to make a decision with regard to a woman’s health or the health of a fetus,” Owens said. “She has no guidance. She has no way to know if she will be prosecuted.
“Does she pick up the phone and call her attorney?” Owens asked. “Does she wait for a prosecutor to charge [her] and wait for a trial?”
Once a doctor decides to delay a medical procedure, “at that point the harm has been done,” Owens said.
“They are left with no guidance,” Owens said, “therefore the TRO is granted.” The order, effective immediately, applies statewide to prosecutors, law officers and others and prevents them from enforcing the ban, Owens said.
Owens concluded the hearing, which began at 10 a.m., within two hours. Approximately 18 people attended the court session in person.
State: not here
The state, through attorney Jay Jerde, argued that Wyoming’s abortion ban law does not prevent a woman from getting an abortion.
“The [abortion ban] statute isn’t directed at women making a decision about abortion,” he said. “It just says that abortion can’t be performed in Wyoming.”
Jerde also said that a 2012 Wyoming constitutional amendment guaranteeing the right of residents to make their own health care decisions was approved by voters during debates over Obamacare and was not meant to apply to abortions.
The Legislature’s and voters’ enactment of the constitutional amendment was made in the context of the Affordable Care Act, he said. “Do you really think the voters intended to say [the amendment included] the right to abortion?” Jerde asked.
If voters had believed that’s what the amendment said, they would have had a different attitude at the polls, Jerde said.
But Anthony and Johnson’s attorney Marci Bramlet told the judge she must read the plain language of the amendment, not try to interpret voters’ intent.
They also said the religion of one of their clients — Kathleen Dow — would be trammeled if an abortion ban were to take effect. As a practicing Jew who is engaged and plans to have a family, she has a religious obligation that includes having an abortion under some circumstances, according to the suit.
A temporary restraining order would preserve the status quo, the attorneys said, which is one of the purposes of allowing such orders. Others are that irreparable harm could result, that the issue is serious and that the women could win on the merits of an argument for a longer-lasting injunction that could extend until a trial on the central issue could take place.
“It makes sense to maintain the status quo before the state strips a constitutional right,” Bramlet said.
If the state can tell a woman they must have a child, “it can say they cannot have a child,” Bramlet said. “Who are we then?”
Wyoming’s criminal abortion ban law would make performing an abortion a felony punishable by up to 14 years in prison.