JACKSON—Judge Melissa Owens could decide in the coming days or weeks on the constitutionality of Wyoming’s abortion bans. She could also forgo a ruling and allow the case to proceed to trial.
All parties in the case want Owens to skip trial and issue a judgment on their behalf, arguing only questions of law exist. The two sides made their case to her on Thursday in Jackson, prompting questions from the bench.
If Owens rules fully in the plaintiffs’ favor, finding both a near-total ban and a medication abortion ban to be unconstitutional, most abortions would remain legal in Wyoming.
If she rules in favor of the state, which contends the bans are legal, then most abortions could be outlawed in Wyoming.
It’s also possible that Owens finds there to be fact issues that need to be sussed out in a trial, which would be set for a later date.
Regardless, her decision is expected to be appealed to the Wyoming Supreme Court. In the meantime, abortion remains legal here.
The Wyoming Supreme Court hasn’t yet ruled whether a group of anti-abortion advocates were incorrectly denied admittance to the case. If the justices find the Republican lawmakers and Right to Life Wyoming should’ve been allowed to intervene, that could set this case back.
Plaintiffs’ arguments
As WyoFile has previously reported, the plaintiffs argue the bans violate several sections of the state constitution. They say the bans are unconstitutionally vague and violate rights to make health care decisions, equal protections, religious rights and unenumerated rights.
Peter Modlin, one of three plaintiff attorneys who spoke Thursday, focused on some of the practical effects the bans could have on individuals.
“First and foremost, the statutes would have a devastating impact on women’s health in Wyoming,” he said.
He spent much of his time referencing Texas, where a woman recently left the state after a court battle because she wasn’t legally allowed to get an abortion even though the fetus had a genetic condition that left it with little chance of survival. Plaintiffs have drawn comparisons between the language of Texas’ ban and Wyoming’s.
Modlin also mentioned health issues that aren’t exempted in Wyoming’s bans — like when a membrane ruptures before viability — which don’t immediately affect women, but could affect their health later on. Wyoming’s bans include exceptions for incest, rape and to preserve the life of the mother, but plaintiffs argue the exemptions are so vague that they can’t sufficiently protect women in any of these scenarios.
“[Pre-viability rupture] presents a very good illustration of why these laws will harm women,” he said. “What do the bans say about pre-viability rupture? They say nothing.”
He also said the bans don’t adequately account for women’s mental health, noting that it is the top contributor to maternal mortality nationwide. The medication abortion ban specifically states mental health concerns are not an exception.
Beyond that, he reiterated concerns for assault victims and noted minors would be required to rely on their guardians to report claims of incest in order to qualify for an abortion.
Following Modlin, two other attorneys for the plaintiffs argued the bans violate unenumerated rights — like a right to be left alone by the government — and equal protections for women. The filing laying out many of these arguments is here.
The state
Arguing his case on behalf of the abortion bans Thursday, Special Assistant Attorney General Jay Jerde laid out much of the same argument he presented last October.
That included looking at the history of abortion in Wyoming — largely being outlawed before Roe v. Wade — and why he thinks the state’s two bans are constitutional.
First off, he continued to argue that he doesn’t believe abortion is health care as protected by Article 1, Section 38 of the Wyoming Constitution. But even if Owens continues to rule that it is health care — as she’s found previously — he argues that it’s not a woman’s “own” health care decision to make.
“It’s going to kill the unborn baby,” he said.
Besides, he argued, people may have a right to make health care decisions, but the state can still limit those choices. The state can take away choices — like abortion — without infringing on someone’s decision, he told the court.
Jerde also regularly pointed to the Dobbs v. Jackson Women’s Health Organization decision, which overturned Roe v. Wade. He stated that Wyoming’s protections for women and religions aren’t more restrictive than the U.S. Constitution, and since the U.S. Supreme Court felt abortion could be regulated by the states in Dobbs, abortion restrictions should be legal in Wyoming, too.
It’s a stance the plaintiffs disagree with.
Religion also isn’t the only factor in creating abortion restrictions, Jerde argued; there are also scientific disagreements about when life begins.
“It isn’t distinctly religious,” Jerde argued, calling it a “traditionalist” point of view.
The bans’ language is also clear enough in certain circumstances to avoid being found unconstitutional due to vagueness, Jerde contends.
The filing containing most of his other arguments is here.
History
In March 2022, the Wyoming Legislature passed a “trigger ban” that would outlaw most abortions if Roe v. Wade fell, which it did three months later.
That law was set to go into effect on July 27, but Owens stalled its enforcement that same day via a temporary restraining order, followed by a preliminary injunction. Both were prompted by a lawsuit filed by the plaintiffs, a group of women, doctors, a clinic and an advocacy organization.
As that law started to make its way through the court system, the Wyoming Legislature passed two new bans in early 2023: a near-total ban that would replace the trigger ban and a medication abortion ban — the first of its kind in the nation.
Gov. Mark Gordon let the near-total abortion ban go into effect March 17 without his signature, but Owens stalled enforcement when she issued another temporary restraining order on March 22 following a new lawsuit filed by the same group of plaintiffs. Enforcement of the medication abortion ban was likewise stalled in June.
Since then, both parties filed cross-motions for summary judgment, laying out much of their cases. Thursday’s hearing was a result of those filings.
What’s next
The U.S. Supreme Court may also soon play a role in abortion legality in Wyoming. It decided this week to hear a case challenging federal approvals for one of the most-used abortion-inducing drugs, mifepristone.
As WyoFile has reported, it’s commonly used alongside the medication misoprostol. While misoprostol alone can still induce abortions, there are anecdotes of that one-medication regimen causing a longer, more painful process.
Note: This story was updated at 7:20 p.m. Dec. 14. —Ed.
Neither the state or any other government organization has a moral right to deny a woman her right to control her body.
“Gov Gordon let the near total abortion ban go into effect without his signature.” That’s code for no spine.
That is code for thinking that the decision about abortion should be presented to all the citizens of Wyoming instead of being fast tracked by people that believe they hear voices from the sky instead of looking at the limits of State and Federal power.
The government has no right to interfere in whether I bring a citizen into the Republic, none.
Governor Gordon showed a distinct lack of courage when he let the anti-abortion law go into effect without his signature. He is one of the defendants in the current lawsuit to overturn the bans. Therefore, he and the GOP are pro-forced birth and against women’s health, including mental health. Pregnancy is definitely a woman’ health issue and all woman have a constitutional right to decide whether or not to carry the pregnancy to term.
The argument that an intrauterine zygote, embryo, or fetus is an unborn baby is factually incorrect. The statement that there is “scientific controversy” over when “human life” begins is false. The GOP conscience soothing “oh there are exceptions for the life of the mother and rape and incest” mantra is clearly a veneer for the GOPs actual “no abortions, no exceptions” desire. The State’s rebuttal argument that the bans are indeed not vague is pure misogynistic stubbornness. Wyoming’s Republicans are big on “individual rights” and “The Constitution” until they run counter to what they want or believe. That is called HYPOCRISY.