Judge pauses Wyoming abortion ban during legal challenge

Aug. 11—CHEYENNE — A judge on Wednesday granted a preliminary injunction to the state's near-total abortion ban. Wyoming now joins North Dakota and Utah as among states where a judge has temporarily blocked such laws.

In the latest order from Teton County District Court Judge Melissa Owens, she ruled to prevent any enforcement of the new law during the pendency of the lawsuit at hand. Now, abortions in Wyoming remain legal, under a 1977 law in place until recently.

Before the so-called trigger law, so named because it could be put into place once the U.S. Supreme Court overturned the Roe v. Wade pro-abortion precedent, Wyoming permitted abortions until the point of viability, the judge wrote.

The new court order was sent by email from a clerk to the Wyoming Tribune Eagle about 35 minutes after a previous temporary restraining order, issued by Owens at a July 27 hearing, expired at noon Wednesday local time. The time stamp on the new document itself was 12:07 p.m.

Owens wrote that plaintiffs met their burden in showing irreparable harm to pregnant people and physicians in Wyoming while the suit is underway, and this harm is greater than any caused by delaying enforcement. The judge suggested plaintiffs may be able to show the law is unconstitutional.

At a Tuesday hearing, Owens heard from plaintiffs' lawyers who sought to block the ordinance, and from an attorney for the state, who also argued on behalf of Gov. Mark Gordon and Attorney General Bridget Hill.

The lawsuit, filed in late July, argued the ban violates the state's Constitution. This allegedly includes Article 1, Section 38, which says "each competent adult shall have the right to make his or her own health care decisions."

Plaintiffs are Dr. Giovannina Anthony, a Jackson doctor who is the only provider of abortions in the state; Cheyenne obstetrician and gynecologist Dr. Rene Hinkle; a Casper clinic hoping to provide abortion services; a Wyoming abortion fund; and two Wyomingites. Reacting to the decision, the Casper clinic said it plans to move ahead with its opening.

Irreparable harm

In her order, Owens ruled that plaintiffs demonstrated that pregnant women and physicians in Wyoming could suffer irreparable harm, absent a preliminary injunction.

Owens wrote that the ban "may force" one of the plaintiffs, a pregnant woman, "to delay or be denied evidence based medical care in the event of an unforeseen condition, life threatening condition, pregnancy related complication, or a fetal abnormality incompatible with life."

Anthony and Hinkle, the two physician plaintiffs, "may be subject to a host of irreparable harms," including felony prosecution, loss of medical license and up to 14 years in prison "for providing evidence-based health care to her Wyoming patients in need of abortion services," Owens wrote. This could lead to "loss of customers, loss of good will, and threats to the viability of their business."

The judge added that possible delay in health care actions caused by ill-defined exceptions in the law could cause injury or death to patients, or that physicians could "overstep the limited exceptions which are vague and provide no guidance to the doctors."

The law, passed during this year's legislative session, allows abortions "to preserve the woman from serious risk of death or of substantial and irreversible physical impairment of a major bodily function, not including any psychological or emotional conditions," or as a result of incest or rape.

Reaction

Julie Burkhart, founder and president of Wellspring Health Access — the plaintiff that plans to open a clinic offering abortions in Casper — said the organization's launch remains within sight.

"Today's ruling is an important victory for abortion access in Wyoming and in support of Wyomingites' constitutionally protected right to make decisions about their own health care," her statement read. "While we are heartened by today's outcome, we know the fight to keep abortion legal in Wyoming is far from over. We remain committed to doing everything we can to both protect the legal right to abortion in Wyoming and ensure that patients can actually receive the reproductive health care they need.

"We are still working toward opening our clinic in Casper in the coming months, which will be a major step forward for comprehensive reproductive health care access in the state. We are grateful for the support we are receiving from communities across Wyoming."

When reached by the WTE for comment, Michael Pearlman, spokesperson for the governor's office, said by email: "The Attorney General will continue to defend the state's position on this issue in the courts."

Other defendants, including AG Hill and law enforcement agency heads in Teton County, did not comment.

A scheduling conference is set for 10 a.m. on Aug. 24.

Probable success

Plaintiffs have "probable success" in challenging the law's constitutionality, Owens said in her order:

"All of Plaintiffs challenges raise important legal questions involving constitutional rights."

The judge focused on legal challenges based on two parts of the Constitution as being potentially likely to succeed. She said the court could also possibly find the law is "unconstitutionally vague."

An analysis of words in Article 1, Section 38 "in accordance with their plain and ordinary meaning ... lends itself to a finding that a decision to have an abortion is a health care decision," Owens wrote.

Article 1, Section 38 was adopted in 2012 as a way to push back against the Affordable Care Act, also known as Obamacare, the state's counsel noted during Tuesday's arguments.

Owens acknowledged an argument that rights under Article 1, Section 38 "are not limitless and are subject to 'reasonable and necessary restrictions' in order to 'protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution.'" These limits must be protected from "undue governmental infringement," according to the statute, the jurist wrote.

In a scenario in which a woman with a desired pregnancy finds out the fetus has a fatal abnormality, Owens suggested, "the Court could find that the (House Bill) 92 Amendment is beyond a reasonable doubt, not related to a legitimate government interest." She could not "identify how restricting a woman's right to make her own health care decision in this circumstance is reasonable and necessary to protect the health and general welfare of the people or to accomplish any other purpose set forth in the Wyoming Constitution."

Article 1, Section 3 guarantees equal political rights, notwithstanding "sex." Owens said that because the abortion ban "only restricts a health care procedure needed or elected by woman," it could be discriminatory on the basis of sex.

Owens wrote plaintiffs could show unconstitutional vagueness of the exceptions because the statute fails to outline how a doctor can legally determine a pregnancy was caused by rape or incest, or if a pregnancy is life-threatening to the pregnant person.

"If it is not qualified by 'appropriate medical judgment,'" she wrote, "does this mean it is qualified by the appropriate judgment of lawyers or prosecutors throughout the state?"

This story has been updated with additional information from the judge's order.

Hannah Black is the Wyoming Tribune Eagle's criminal justice reporter. She can be reached at hblack@wyomingnews.com or 307-633-3128. Follow her on Twitter at @hannahcblack.