Surgical abortions likely to remain legal until April 2024 trial

The lawsuit over Wyoming’s abortion bans is scheduled for trial on April 15, 2024. Unless the trial is avoided or delayed, surgical abortions in the state are expected to remain legal until then. 

As scheduled, three days will be set aside for a bench trial, in which a judge makes a decision instead of a jury.

As for medication abortions, they may become illegal in Wyoming as soon as July 1 — unless the Ninth District Court Judge Melissa Owens rules next week to put a temporary restraining order on that separate law.

During a hearing in Jackson on June 22, Owens is expected to decide whether the state’s medication ban should be restrained along with the state’s near-total ban, which she blocked in March.  

In that instance, Owens’ reasoning boiled down to a belief that the law would cause plaintiffs “possible irreparable injury” if it wasn’t enjoined and that it would likely be found unconstitutional on the basis of Article 1, Section 38 of the Wyoming Constitution. 

“Each competent adult shall have the right to make his or her own health care decisions,” the constitution states. Later, it adds, “The legislature may determine reasonable and necessary restrictions on the rights granted under this section to protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution. The state of Wyoming shall act to preserve these rights from undue governmental infringement.”

In their latest filing, dated June 9, plaintiffs — which include health care providers, abortion access advocates and women who may become pregnant — state that the medication abortion ban is also likely to be found unconstitutional.

Defendants — who include the Wyoming attorney general and governor — argued last month that the intent of that section of the constitution was to rebuff the federal government from health care overreach, not the state government. That amendment passed via popular vote in 2012. 

However, plaintiffs say the history and intent only matters if Section 38’s language is vague, which they contend it isn’t. The final language now in the constitution also doesn’t include the federal government, the plaintiffs continued, and voters didn’t necessarily know it was related to the feds, either. 

“In any event, the State fails to explain how the legislative history of the proposed amendment has any bearing on the intent of the nearly 200,000 Wyomingites who voted to adopt Section 38,” the plaintiffs state. 

It’s also not “necessary” or “reasonable” to force women to choose surgical abortions over medication abortions, the plaintiffs state, citing the constitution.

Another argument in the suit is whether a right to make health care decisions means the state can’t limit health care options. 

“As consumers of medical services, patients have no direct role in determining what medical services legally are available,” the state contended in its May filing. 

Opposing that line of thinking, plaintiffs stated “In so arguing, the State attempts to render Section 38 meaningless.

“If the State may dictate, without limitation, what health care is available to citizens, then plainly Wyomingites have no power to decide their own health care.”

Upcoming deadlines

With the trial set, attorneys involved are expected to meet for a pretrial conference in December and a final pretrial hearing in March 2024. 

Meanwhile, proposed intervenors like Secretary of State Chuck Gray could appeal a decision by Judge Owens to not allow them to join the case. Three of the intervenors, including lawmakers and an anti-abortion group, tried to appeal a similar decision to the state supreme court after failing to join a suit over a past abortion ban. However, that ban was replaced, rendering the appeal moot.

Wellspring Health Access — one of the plaintiffs in the suit and the only clinic offering surgical abortions in Wyoming — also has another case to watch. Last year, its facility was set on fire, delaying opening and causing about $290,000 in damages, according to Wellspring. 

The alleged arsonist in that federal case, Lorna Green, entered a not guilty plea and her trial date is set for July 24. This week, federal officials filed their intent to utilize several experts in that trial, including forensic experts, a DNA specialist and a fire investigator.