This story includes highly summarized arguments from the state’s case for why Wyoming’s two abortion ban laws are constitutional. To read a similarly-shortened version of the plaintiff’s case, go here.
New filings show that both parties in the lawsuit over Wyoming’s abortion bans have something in common: They want to skip a trial and get the judge to rule in their favor ahead of time. However, those court documents also highlight the two sides’ many differences, including a disagreement about the legality of the bans.
In a filing from last week, the state responded to a call from plaintiffs to issue a summary judgment on their behalf, providing a more detailed explanation of why Wyoming’s attorneys say both bans — including a near-total abortion ban and a medication abortion ban — are constitutional.
The foundation of the state’s case is largely built on the history of Wyoming law, what rights it says the state grants — and doesn’t grant — and the Dobbs decision, which overturned Roe v. Wade.
A group of women, medical providers and an aid organization filed suit against the two bans the day they went into law. Named in the suit are the governor, attorney general, Teton County sheriff and the Jackson chief of police.
The parties are still debating which legal tests 9th District Judge Melissa Owens should use in this case, which will determine what each side needs to prove. However, the argument still boils down to whether these abortion bans are unconstitutional and are aligned with some kind of government interest.
Finally, the state added its own list of “undisputed material facts” to the case, vying for a summary judgment in its favor. In requesting summary judgements, parties state there are no issues of material fact to suss out, only legal ones that the judge can decide ahead of a trial. At the same time, the state is not waiving its right to contest certain facts listed by plaintiffs in another recent filing.
Abortion and health care
One main flashpoint in this case is the state constitution’s Article 1, Section 38, which gives competent adults the “right to make his or her own health care decisions.” It also allows the Legislature to “determine reasonable and necessary restrictions” on that right.
Abortion isn’t health care, the state argues, citing dictionary definitions of “health” that describe it as being of sound mind, body and spirit/soul, especially free from pain or illness. The plaintiffs contended abortion fits these definitions because pregnancy can cause illness, pain and mental strain. The state disagrees.
“Although pregnancy impacts the physical condition of the pregnant woman, it is a bridge too far to say that pregnancy is a physical disease or sickness or that abortion restores the health of the pregnant woman who is otherwise in good health,” the filing states.
Even if the court finds that abortion is health care — as it has in the past — the state contends it’s not a health care decision protected by the constitution. Instead, it argues patients can choose among legal health care options but can’t demand more options to be offered by medical institutions.
“It is absurd to think that the Legislature and the voters intended to give patients such unfettered, unilateral authority to disregard the law,” the filing states.
That gets at another big tenet of the state’s argument: intent.
When voters overwhelmingly supported the adoption of Section 38 in 2012, they were voicing disapproval of the Affordable Care Act and its health insurance provisions, the state argues. To back that claim, the filing notes early language of the bill, anti-ACA sentiment and news coverage of the constitutional amendment before passage.
Abortion also isn’t the pregnant woman’s “own” health care decision since it affects the fetus, the state writes, adding that one of the abortion bans grants an unborn baby the right to life. Granting such rights isn’t new, the filing states, citing a state statute that gives the unborn the right of inheritance — 2-4-103 — and a Wyoming court case regarding worker’s compensation benefits being passed onto a child born after a parent’s death.
Previously, plaintiffs argued the abortion bans didn’t further a stated government interest of protecting the unborn because the bans had exceptions. Meanwhile, the state contends it’s balancing the rights of women and the unborn, giving women more rights in certain cases, like when they face life-threatening medical situations.
One thing that wasn’t directly addressed in the state’s memorandum is that the medication abortion ban specifically does not grant an exception for women whose life is at risk because of “psychological or emotional conditions.”
A key test for whether a law is unconstitutionally vague is whether an average, every-day citizen understands what a law is forbidding.
The state argues both abortion bans are comprehensible to such a person. It also argues that the phrases used in the bans — and their dictionary definitions — are clear enough for physicians to understand, contradicting extensive testimony provided by the plaintiffs’ expert witnesses.
Those witnesses wrote that some phrases in the bans had no medical meaning. However, the state writes that the plaintiffs’ arguments are insufficient, specific medical terminology is not required in lawmaking and that the opinion of a few hand-picked physicians isn’t enough to prove the bans would create widespread confusion.
“To the contrary, it defies logic to suggest that the declaration testimony of the three physicians who clearly do not agree with the policies embodied in the Life Act and the chemical abortion statute in any way reflects the common understanding of physicians as a group regarding the language in those statutes,” the filing states.
When it comes to whether the bans unconstitutionally infringe on religious rights, the state contends that — much like the U.S. Supreme Court found in Dobbs v. Jackson Women’s Health Organization — the bans are constitutional. This is at odds with what plaintiffs contend about state protections for religious expression and against establishment of religion.
To make its argument, the state lays out why it believes Wyoming’s constitution does not offer more robust protections than the U.S. Constitution, even providing narrower protections in some instances.
If the state’s constitution doesn’t offer more protections than the national one, and the Dobbs decision found that abortion bans are constitutional, then the state’s bans are likewise constitutional, the state argues.
The filing also states that individual lawmakers’ religious views are not legally relevant and that banning abortion isn’t just about religion — there have been scientific disagreements about when life begins, too.
Finally, the state points to legal disagreements over the Hyde Amendment, which prohibited the use of federal funds to reimburse abortion costs via Medicaid under most circumstances.
In the Supreme Court case Harris v. McRae, justices found that the amendment was constitutional. While the government can’t pass laws to aid one religion, they wrote, “it does not follow that a statute violated the Establishment Clause because it happens to coincide or harmonize with the tenets of some or all religions.”
Equality of the sexes
Abortion bans’ unequal effect on women is yet another reason plaintiffs claim they’re unconstitutional.
Equal protections are enshrined in the Wyoming Constitution, but the state argues Article 1, Section 3 this only protects political rights and privileges from discrimination based on sex.
“Nothing in the Life Act or the chemical abortion statute in any way affects the political rights and privileges of the citizens of the State of Wyoming,” the filing states.
The state acknowledges that some experts, like Wyoming constitutional scholar Robert Kiter, believe the state intended to grant more robust protections than the federal government. However, it disagrees with that sentiment.
Once again, it argues the state’s constitution doesn’t offer more protections than the federal one, which would mean abortion bans are constitutional under Dobbs.
“The enumeration in this constitution, of certain rights shall not be construed to deny, impair, or disparage others retained by the people,” Wyoming’s constitution states.
In their own filing, plaintiffs argued that the bans violate this section of the constitution because Wyoming residents have unwritten rights like the right to be let alone, the right to associate with one’s family and a right to bodily autonomy.
The state disagrees, writing that this section doesn’t actually grant rights. Instead, it clarifies that the document’s lack of writing down certain rights doesn’t preclude their existence.
Future filings in this case include the judge’s decision over whether expert witnesses will be allowed, the plaintiffs’ response to the state’s reasoning above and the state’s response to the plaintiffs’ response.
A hearing is set for Dec. 14 in Jackson over both parties’ motions for summary judgment.
Most abortion remains legal in Wyoming.