JACKSON—Two legislators and an anti-abortion group can’t immediately intervene in a suit that asserts a Wyoming abortion ban violates the state constitution, a district judge decided Monday.

After hearing oral arguments, Ninth District Judge Melissa Owens said she needs more time to determine whether the Republican lawmakers and a nonprofit can fully participate in a suit that has so far blocked the state from enacting the abortion ban law.

Owens heard about 40 minutes of arguments from Peter Modlin, who represented four women and two groups who challenged the Wyoming abortion-ban law, and Denise Harle, representing the legislators and Right to Life of Wyoming.

“This is an extremely difficult decision for this court,” Owens said. “I want to take my time in deciding this.”

She could issue a decision in a week or two, she said.

The challengers to the abortion ban, including Danielle Johnson, Kathleen Dow, Dr. Giovannina Anthony and Dr. Rene Hinkle, sued the state saying the 2022 abortion ban law violated Wyoming’s constitutional guarantee that individuals can make their own health care decisions. The legislators and Right to Life of Wyoming say they should be allowed to argue aspects of the issue that the Wyoming attorney general’s office is not addressing.

“They will be free to continue legislating and advocating.”

attorney Peter Modlin

The legislators — Reps. Rachel Rodriguez-Williams (R-Cody) and Chip Neiman (R-Hulett) — were sponsor and co-sponsor of the abortion ban bill respectively.

Rodriguez-Williams is CEO and executive director of the Serenity Pregnancy Resource Center, according to LinkedIn and briefs filed in the case. As a lawmaker, Neiman had the authority to regulate health and safety as part of his office, filings state.

Right to Life Wyoming should be allowed into the lawsuit because it was the chief lobbyist for the abortion ban law, which “rises or falls with this case,” Harle said. Should courts find the law unconstitutional, all the group’s work would be futile, she said.

“Their interests may not be adequately represented” by the attorney general’s office, Harle said of her clients. No one wants this case to go up to the Wyoming Supreme Court, a perceived inevitability, “on a one-sided record.”

Concern, not an interest

But none of the proposed intervenors established a valid reason for the privileged legal status, said Modlin, one of the attorneys challenging the abortion ban law.

The proposed intervenors had a concern, he said, rather than an interest that would be affected by the case’s outcome. Lawmakers can still pass laws, regardless of the outcome of the lawsuit, he said. Right to Life of Wyoming, “their interest comes down to advocacy,” he said.

“They will be free to continue legislating and advocating,” Modlin said; the case will not impair that.

Further, the proposed intervenors have the same objective as the state, Modlin argued, and so should not be allowed to participate directly.

Ninth Judicial District Judge Melissa Owens greets the courtroom Nov. 21, 2022 at the beginning of a hearing on whether an anti-abortion nonprofit and two state lawmakers can intervene in Wyoming’s abortion legal battle. (Kathryn Ziesig/Jackson Hole News&Guide/pool)

“What it really boils down to is because the attorney general did not introduce evidence at the preliminary injunction case, [state attorneys] cannot be trusted to represent proposed intervenors interest,” Modlin said. Disputes over litigation status are not enough to rebut the presumption that the state and the proposed intervenors have the same objective, he said.

Right to Life of Wyoming and the lawmakers sought to argue points the plaintiffs themselves raised, such as whether a decision to have an abortion is a health care decision protected by the Wyoming Constitution. Harle’s clients believe the rights to make health care decisions “do not, and never were understood, to create or protect a right to elective abortion in Wyoming,” a brief states.

Harle asked that if Owens decides the intervenors shouldn’t be allowed to participate as a matter of law, the judge should let them into the case on a permissive basis. In contrast, Modlin said the proposed intervenors can participate by filing amicus briefs. Those are legal papers that aim to help the court decide an issue but are filed by parties who cannot make direct arguments in the courtroom.

Angus M. Thuermer Jr.

Angus M. Thuermer Jr. is the natural resources reporter for WyoFile. He is a veteran Wyoming reporter and editor with more than 35 years experience in Wyoming. Contact him at angus@wyofile.com or (307)...

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  1. These people want to use the court to make a grandstand and garner contributions. Amicus briefs are specifically designed for them to do present their views without wasting the court’s valuable time. Based on the Wyoming Constitution, the Attorney General is the best spokesman for the state. That individual is responsible for representing the state, independent of whoever holds that office. These individuals should butt out, especially since this law violates the very constitutional amendment that Right to Life advocated a few years ago.

  2. Now we get to see if “Rule of Law” still exists in Wyoming, and whether the Wyoming Constitution is worth the paper it was written on. We may even get to see if the Wyoming Supreme Court has been co-opted into being a political weapon of a political party like the SCOTUS has.

  3. Those with the most to lose (their lives) have no voice. How many women spend the rest of their lives mourning the child they killed and trying to live with the guilt? Has anyone ever done a study on the long term impact on the mother who had her baby destroyed? grief and self recrimination have to have a life time effect on her.

    1. Marion Dickenson, as a counselor, that answer is NONE. All of my clients believe they made the best choice for themselves at the time. There is no grief and recrimination. To have been forced to give birth would have been utterly detrimental to their lives and futures, and in some cases, have tied them to men who were abusive and controlling.
      I continue to support that this is, indeed, a healthcare decision between woman and doctor.

    2. I haven’t seen any report or study but I know two individuals who did go through with their abortions, one who did it more than once. Neither of them have had a. happy or normal life since. Both have had drug or drinking issues and abnormal relationships with their families. The families in both cases were supportive of the woman to differing degrees. So I can’t say from anything other than that but I know my one of these women was a relative of mine and she is still in a battle to get her life in order. The other woman was my roommate many years ago and last I knew her life was in a down ward spiral. Both have talked about their decision and even though they won’t say they regret it they will say their life has never been the same since. So, I would wonder about the mental health of these women. I know two others who thought of abortion and then didn’t do it. One was raped and then gave the baby up for adoption the other a native american woman decided to keep her baby even though she faced a lot within her native people. She went on to become a nurse within her community. The one who gave her child up for adoption has never regretted her decision and has gone on to marry and have a family. Both seem to be doing better than the two who chose abortion. But that is just my experience with 4 women put in that situation. I only wish the best for whoever has to make such a decision. It is a huge one that from what I have seen no matter what they choose could affect them for the rest of their lives.