The temporary restraining order issued last week against Wyoming’s abortion ban is only the first step in what is likely to be a more prolonged battle in the courts — one that legal experts believe could ultimately end up before the Wyoming Supreme Court.
While the TRO only protects abortion access until next week, one expert explained the standard for granting the rare motion is extremely high, an indication that plaintiffs may be successful in future proceedings.
It didn’t take long after Gov. Mark Gordon certified Wyoming’s abortion ban on Friday, July 22 for proponents of abortion access to mount a legal attack.
The following Monday four individuals and two non-profits sued the state of Wyoming. Two day’s later, following an emergency hearing, Ninth District Judge Melissa Owens issued a temporary restraining order, preventing the state’s abortion ban from taking effect for roughly two more weeks.
Owens reasoned in her motion granting the TRO that Wyoming’s law banning abortion could result in a delay or denial of “evidence based medical care” for Danielle Johnson, a pregnant plaintiff, and that Dr. Giovannina Anthony, an OB-GYN who’s practice provides abortions, could be subject to “a loss of customers, loss of goodwill, and threats to the viability of her business.”
“The standards get lower as you get further into the process. So having success at the early stages is a pretty good indicator that you’re likely to have success later on.”
Kenneth Chestek, University of Wyoming law professor
Owens also wrote “the statute lacks any guidance on the provider’s use of medical judgment as to when to provide necessary care.”
In the meantime, both plaintiffs and defendants are preparing arguments for a preliminary injunction hearing on Aug. 9 while doctors and women across the state contend with the potential of losing abortion access.
Next steps
A rarely used legal instrument, temporary restraining orders are only granted when a judge determines that there’s a risk of immediate and irreparable harm, according to University of Wyoming law professor Kenneth Chestek. The order maintains the status quo — in this case legal access to abortion — for a brief period of time until more in depth hearings can take place.
The temporary restraining order issued by Owens is set to expire at noon Aug. 10. The court is scheduled to decide Aug. 9 whether to grant a preliminary injunction.
If granted, abortion will remain legal until the final hearing on the merits of the case against the ban, Chestek said.
While the defense could appeal the preliminary injunction, Chestek thinks that’s unlikely. There’s a high threshold that must be met to appeal “interlocutory orders,” such as the TRO, Chestek said. Further, the time between the preliminary injunction and the final ruling likely won’t be long. The judge could potentially make both rulings on the same day, if she feels she has enough evidence to determine the constitutionality of the ban.
Such a ruling on constitutionality will be the last decision by the district court, which may require hearings beyond next week’s before reaching its conclusion. If the judge rules the abortion ban unconstitutional, a final injunction would go into effect and the procedure would remain legal in Wyoming.
If the judge issues a final injunction, the state is likely to appeal the ruling and the case would then head to the state Supreme Court, observers say. The timeline for resolving Wyoming Supreme Court cases is unpredictable; Chestek said it could take a year.
Similar legal battles are simultaneously unfolding in other Mountain West states with abortion ban trigger laws like Wyoming’s. In Utah last month a judge granted a preliminary injunction preventing the state’s abortion ban from going into effect before a ruling on the constitutionality of the law. Meanwhile, the Biden administration’s Justice Department is suing Idaho, claiming the state’s abortion ban violates the Emergency Medical Treatment and Labor Act.
The granting of a temporary restraining order in Wyoming is a good sign for plaintiffs, Chestek explained.
“The standards get lower as you get further into the process,” Chestek said. “So having success at the early stages is a pretty good indicator that you’re likely to have success later on.”
The defense’s arguments
Jay Jerde, special assistant to the attorney general, argued in a brief that “plaintiffs have not made a clear showing of probable success on the merits.”
Jerde wrote the plaintiffs’ lawyers failed to establish a constitutional right to abortion. “Any discussion of whether the Wyoming Constitution confers a right to abortion,” Jerde wrote, “must begin with one undeniable truth — the word ‘abortion’ does not appear anywhere in the Wyoming Constitution.”
He argued the Wyoming Constitution contains neither an explicit nor implicit right to abortion.
For example, the plaintiffs’ lawyers pointed to article 1, section 38, a constitutional clause passed in 2012 which states, “Each competent adult shall have the right to make his or her own health care decisions.”
In the hearing last week, the plaintiffs said abortion is health care and therefore protected under the health care amendment in the constitution.
The court should determine the intent of the legislators and voters who passed the amendment, Jerde wrote, arguing it was in response to the Affordable Care Act and not intended to protect abortion care.
The women and groups who challenged also alleged it violated myriad other constitutional rights including “equality, due process, uniform operation of the laws, family composition, privacy and bodily integrity, conscience, and access to health care.”
The state countered that the constitution’s equal protections clauses were not pertinent because the abortion ban focused on anyone performing an abortion, not pregnant women, and those performing abortions were being held to a uniform standard.
“The statute cannot infringe upon a right that does not exist,” Jerde wrote.
The state also argued plaintiffs failed to meet the standard for proving irreparable injury if the abortion ban were enacted, writing “their irreparable injury argument fails because they do not explain how these alleged harms constitute irreparable injury under Wyoming case law.”
New motion
Plaintiffs filed a memo in support and a new motion requesting a preliminary injunction Wednesday afternoon.
In the memo of support, plaintiffs’ lawyers argue if the TRO is allowed to expire, “the Wyoming Criminal Abortion Ban will have a catastrophic impact on Plaintiffs and Wyomingites alike. The Act will force many Wyomingites seeking abortion to carry pregnancies to term against their will with all of the physical, emotional, and financial costs that entails.”
The lawyers also state in the memo that it is up to the defense to show the proposed regulation is “narrowly tailored to achieve a compelling state interest.” Lawyers claim abortion is both time sensitive and constitutionally protected, writing “the loss of a constitutional right alone is sufficient to justify injunctive relief.”
They also noted roughly 20% of Anthony’s and Dr. Rene Hinkle’s pre-natal patients are high-risk, and the abortion ban wouldn’t allow the doctors to provide the “evidence-based care needed when any of them develop complications requiring preservation of the health of those patients.”
Even in an uncomplicated pregnancy, plaintiffs’ lawyers wrote, individuals experience a wide range of physiological challenges from increase in blood volumes, faster heart rates and digestive complications.
“In sum, pregnancy and parenting are hugely consequential events in Wyomingites’ lives, and being denied an abortion has long-term, negative effects on an individual’s physical and mental health, economic stability, and the wellbeing of their family, including existing children,” the memo states.
Women contend with uncertainty
While abortion will remain legal in Wyoming until at least next week, women and providers must deal with an uncertain future.
Dr. Julie Amaon, medical director of Just the Pill, an online abortion pill provider, wrote in a statement, “Just The Pill is in close contact with lawyers who are following the legal changes in Wyoming. There is certainly the day to day reality of starting and stopping care based on the legal back and forth in any state.”
Anthony, one of the plaintiffs in the case and a provider at the only clinic in the state to provide abortions, said there’s “a lot of fear, a lot of confusion and panic.”
Before last week’s TRO hearing, she’d moved up all her patients’ appointments for medication abortions to Monday and Tuesday in case the procedure became illegal Wednesday.
Patients not only call with questions about the current legal status of abortion in Wyoming, but wondering whether contraception like IUDs would still be legal.
Anthony says she’s also noticed an uptick in women requesting permanent sterilization.
“When a patient comes in to talk about contraception it’s a whole new mindset,” Anthony said Tuesday. “Women are scared and panicked and don’t know where to turn and are pursuing more aggressive birth control through sterilization, or IUD.”
UPDATE: This story has been updated to reflect a new motion and memo of support filed by plaintiffs on Wednesday. -Ed.
Sounds like the state wants to revert back to the ridiculous mindset women should be kept in the kitchen barefoot and pregnant. Are they going to out law a vasectomy for men? That doesn’t hold a candle to the consequences to what a pregnancy does to your mind and body, not to mention finances, and people who think adoption is a noble perfect option they need to open their eyes to how that turns out for not all but many of the children adopted, some do go to loving homes and have a good life but many don’t, many live hard lives. Regardless of viability MANY women do not have the ability to support a child let alone do it alone, and some ended up pregnant by abusive men as a way to make leaving much harder or impossible to leave. At the end of the day the fact remains NO ONE HAS A RIGHT TO MAKE DECISIONS ABOUT SOMEONE ELSE’S BODY.
Yes my name is jack and no I am not transgender, I get asked all the time.
Alan Simpson, the last conservative representative from Wyoming, did not believe that men should even be able to vote on the subject. I’ll second that.
The 14th Amendment to the Constitution clearly states, “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
When SCOTUS ruled on Roe vs Wade in 1973 they legislated from the bench. That authority is granted solely to Congress by the Constitution.
More so, SCOTUS established, by opinion, when life begins. This conflicts with not only with faith-based theology, but with science itself. Life begins at conception and is not a matter of “reproductive health care.” Thus, the 14th Amendment applies to the child in the womb as well.
Equal protection of the laws applies to all! In fact, a mother has a duty and a responsibility to protect their child in the womb. Fathers do not escape responsibility either and have a duty to do so too.
Furthermore, by SCOTUS legislating from the bench they infringed upon States rights guaranteed under the 10th Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Nowhere in the US Constitution is there a right to terminate a pregnancy, the life of a child, granted. Thus, it falls under the authority of the States to write into law if abortion is to be allowed. If the people of a State choose to take the route of allowing the murder of innocent children, the properly elected legislators, and governor of each state must make laws and sign them into effect. In this case, Wyoming legislators listened to the overwhelming will of the People.
The irony of this TRO being issued is the reasoning behind it. Loss of customers, loss of goodwill, viability of a business, evidence based medical care! Pity the poor MD who might lose a pittance of reimbursement for taking the life of a child. Oh, but that’s an emergency dignifying an emergency TRO! What about the loss of life, that of the child in the womb?
So here we are again. A judge gets to legislate from the bench.
It is still very clear the hypocrisy which contextualizes the anti-abortion stance when it comes to men chiming in. For a person, who will NEVER face this choice, to ignore the historical context from which this whole debate arises, is willful ignorance and pure arrogance bordering on misogyny. No one in the pro-choice community is saying a fertilized egg is not a human fertilized egg, what we are saying is a resulting pregnancy belongs to the woman — not you, not your church, not the government. Anyone who has been pregnant knows it is a fact that pregnancy is first and foremost a state of health and not a state of religious beliefs; and so all laws should fall under ‘reproductive health care.’ If you are against abortion, then don’t have one — but wait, you men who will never get pregnant, but still have the inherited power of your white male privilege, need to shut up and then get a vasectomy. Shame on you for still feeling the need to define and control what being a woman means. Just because you can get pregnant no longer determines what it means to be a woman. I would never tell you what to do with your private health care decisions, how dare you think you have the right to use the government to impose your beliefs on everyone who does not agree with you. My body my choice — get over it.
I can’t disagree with anything you said. It’s shameful that those who oppose abortion do so under the guise of the bible when it’s more about the control of women and their lives.
The relentless shilling of the religious rights opposition to abortion is tiresome. It doesn’t matter how many initials someone puts after their name, or how many talking points they regurgitate, it still doesn’t make it their decision.
Abortion is a health care choice that should be decided by the individuals who are involved. Not the government, not a church, and certainly not by partisan politicians. The pro-birthers should focus on children who are already alive and currently in foster care rather than demonizing women for the personal decisions they make in regards to a non-viable unwanted pregnancy.
How come it was my body my choice in regard to masks but now it’s your body my choice when it comes to women’s reproductive rights
Let’s try another argument. Right now and I do mean now, our earth has entered a phase– climate change–in which it will not have the water or food to support the wanted lives much less the unwanted ones
There will be warfare and competition for those resources. In Afghanistan ,people now resort to selling one of their child’s kidneys so they can buy food. So can’t we view abortion as one way to reduce the population and thereby save the world?
How do most scientists and abortion advocates swallow a Camel and yet choke on a Gnat when it comes to the debate on abortion? The cognitive dissonance is pervasive. For nearly 100 years scientists have hypothesized and largely accepted that life on earth “began” in a “primordial soup”. The source of energy to cook life into existence has changed from UV radiation to thermal hydronic currents in some circles but the soup theory remains. According to them all life on earth, human and otherwise, “began” when just the right admixture of basic elements were energized ( heated ) and formed the chemical building blocks ( amino acids ) common to all life forms on earth. Nevertheless and almost incomprehensibly, they can’t accept that a new human life “begins” at the very moment of conception because it has yet to acquire the physical characteristics of a human. Then again neither does J.B.S. Haldane’s primordial soup have any form whatsoever but that they claim in a miraculous instantaneous spark of chemistry is where and when life on earth “began”.
That a unique human life begins at conception is not a theory and is even beautifully elegant in its simplicity. Any other definition, stated in legal terms, is arbitrary and capricious and not based on science but emotion. To argue that the product of conception is not a living entity and that it is not human or of human origin is absurd. To wit, if left unmolested the Natural course of conception, in most all cases, will result in the birth of a unique human being. Life begins at the very moment of conception. Up until the abortion debate began this was never even seriously questioned in the scientific community.
The premise to respect a woman’s right or any person to bodily autonomy ( my body my choice ) is not to be disregarded, should be taken very seriously and respected but we need to recognize just what abortion is and not ignore the hard, cold scientific truth in the debate. Any un-natural intentional act that aborts that process is killing and removes from history a unique human being and the life that human being would impart to another and another ad infinitum.
To accept that all life began in the primordial soup but reject that a new human life begins at conception is to swallow a Camel and choke on a Gnat. It is an example of the cognitive dissonance of those who support legal abortion that permeates the debate.
It might surprise and even shock some reading this that I have held the position of pro choice in the past because I do not believe morality can be legislated. The Government is overly intrusive enough already and our Constitution is inadequate to govern an immoral people but have reconsidered this over the last 5 years or so. Given my understanding of the science, my love for and fascination of Nature and my deeply held respect for the sanctity of life itself, I find the act of abortion ugly, brutal and an affront to Nature and Nature’s God. Abortion is absurdly selfish because those who wish to abort their pregnancy and do so are depriving their own offspring of the very life their mothers gave them. Abortion is immoral and bordering on human genocide ( based on the Rome accords of the International Criminal Court and anthropological definition of Race ) with few exceptions. The most obvious exception being when the mothers life is in jeopardy which is the only singular connection to Health Care. However, in no way would I wish to force my belief’s on another.
Despite my Pro-choice stance in the past and my strong moral and ethical convictions against the act of abortion, I am unwavering in my opinion that any honest discussion of the ethics and legality of abortion must recognize that human life begins at the moment of conception. Cognitive dissonance, any motivation for financial profit and politics have no place in the debate.
No matter how folks try to make abortion sound benign, it is the ending of a life, and a unique life to boot. Billions of dollars are spent trying to figure ways to prolong the life of those already born at any age, yet we end the lives and potential of the unborn without a blink.
Agree. I do not pretend I have the answer to the problem but denying that abortion does end a Human life in a brutal way is not helpful. Defining abortion as “health care” except in the case of risk to the mother which is absolutely and clearly health care is also problematic. I am still grappling with the ethics in cases of rape and incest but neither case is health care unless you consider mental health in the picture. It is clear that in these cases abortion should not be criminalized and perhaps this just needs to be between the patient and the Doctor after counseling etc. I really do not know and each case may be different.
I understand that men have a great responsibility in this as well, for if we would not just look superficially I think most men would never have an intimate relationship with a woman who would abort their offspring. I suppose I can not speak for all of us and in all honesty I learned the hard way and must carry that with me but now I am so very grateful for the wife I now have. Humans are more than just flesh and blood.
I believe abortion is a Societal problem and it is not OK. The porn industry and entertainment industry that has normalized bad behavior figures in as well and the destruction of the family plays in. I think what I am trying to say here is if there is a solution to ending it men need to be an active part of it IMHO. Not just pass a law making it illegal and go about their usual business. If they are into porn they need to get off it now and look the other way, evaluate their lives and establish standards that will prevent them from becoming a part of it. If they are not willing to do this they have no grounds for objecting to it and laying the blame and consequences on a woman is not acceptable. As they say it takes 2.
Thanks for your comment
yeah, great. Some M. Diety from Virginia decides He needs to pop off about a woman’s profound health care decision. Bless his heart! Why? Who knows . . . but He sure thinks we should listen to Him . . . . even though, as pointed out, that unless He’s going to be a seahorse mom, He can’t get pregnant. And from Virginia. Guess He just needs to stick His nose in Wyoming’s, and women’s, bidness for some reason. Needs a hobby?
I was a Wyoming resident likely before you were born and left to go into the military. I have been in over 50 countries around the world and bring that experience in life back to my home in Wyoming. Like most people I have met who can not or do not want to have a honest debate you simply try to diminish the character of the person. Very sad.You can listen to my opinion or not I really do not care but it shows who you are. Bless your heart!
This is as poorly reasoned as it is barren of fact! Bottom line–MY BODY MY CHOICE! “Primordial soup”???