After oral arguments, Wyoming Supreme Court to issue opinion on Teton County abortion case

Dec. 12—CHEYENNE — The Wyoming Supreme Court heard oral arguments Tuesday on whether three potential defendants should be allowed to join a Teton County district court case that could set a crucial precedent for access to abortions in the state.

The Supreme Court will issue an opinion on the matter in the near future, justices said during Tuesday morning's hearing in the case of Johnson v. State of Wyoming.

Tim Garrison, the senior counsel for Alliance Defending Freedom, addressed the court on the behalf of the proposed "intervenors," state Reps. Rachel Rodriguez-Williams, R-Cody, and Chip Niemann, R-Hulett, along with Right to Life Wyoming.

"So, the rules of civil procedure ... say that a party that is not included in a lawsuit, but has an interest in the lawsuit ... has the right to do what we call 'intervene,'" he told the Wyoming Tribune Eagle. "That is, kind of, work their way into a case and become either a plaintiff or defendant."

Teton County District Judge Melissa Owens previously ruled that the three proposed intervenors were not allowed to be a part of the lawsuit, so Garrison said they appealed to the Supreme Court for an official ruling on the matter.

Peter Modlin, who spoke on the behalf of those who did not want the intervenors in the case, said there was a risk that politics would become a necessary part of litigation if the court allowed politicians to be appellants in the case.

"What the proposed intervenors are asking this court to do today is truly unprecedented," Modlin said at the hearing. "We have been able to find no case, and proposed intervenors have cited no case, allowing individual legislators to intervene in a case challenging a statute. Similarly, every case we have found that is considered whether pro-life advocacy groups can intervene in a case challenging an abortion statute has found it could not."

Garrison told the WTE that, regardless of their job or incorporation as an advocacy group, the proposed intervenors have a vested interest in being a part of the case. In fact, Garrison said that because the legislators were so involved in the passage of pro-life bills in Wyoming, they have a right to intervene, and the same applies to Right to Life Wyoming, which helped supply some language for Wyoming's abortion restrictions.

"Our position is that all of these factors mean that these three clients have a right to intervene in this case," he said, "to make sure that their efforts to secure these protections for pregnant women and for unborn children are vigorously defended, when they have come under fire as they have in this case."

During the hearing, Modlin claimed that, when the interests of the state and potential intervenors coincide, there is a stronger burden of proof for proposed intervenors to show that they are not adequately represented in those suits. Earlier, he argued that there were specific confines for what evidence the appellants could and couldn't produce, but later said they hadn't produced enough evidence to merit an intervention. This caused Supreme Court Justice Lynne Boomgaarden to push back on some of his claims.

"Counsel, it seems a little too convenient, though, that you can take that position, Boomgaarden said. "Because, if the plaintiffs are designating experts and presenting evidence, how convenient, then, that you can use intervention to hamstring the presentation of any contrary expert opinions."

"This court will ultimately decide the question; it's been briefed very extensively below," Modlin said. "The court on Thursday, the District Court, will be considering those arguments and ultimately will resolve these issues. We believe it's premature for this court to wade into those questions. And, because the merits really are not before the court today — I could address them, if you would like — I don't think it's appropriate at this point.

"Finally, with respect to permissive intervention, we believe this Court should affirm the District Court's denial of permissive intervention."

Garrison said the reason the intervention of his three clients is so important is that they can provide more evidence that he thinks is vital for the procession of the case, going forward.

"We moved to intervene very early in the process in the lower court, and that court denied our motion to intervene," he said. "And so, the case went on without us. They're now at a stage where the two parties, the plaintiffs and the defendants, have asked the district court to render what's called summary judgment; that's basically deciding the issue without a trial. We think that would be improper in this case, because there has been evidence introduced by the plaintiffs showing all of the alleged benefits that they think will come if these laws are prevented from going into effect, and we think that needs to be countered by evidence that shows the harms of abortion to women."

Judge Owens is expected to hear arguments Thursday in Teton County on whether the case should proceed to trial next year or be decided using summary judgment.

Garrison added the state Attorney General's office — which is representing the state in this case — does not oppose their intervention, which Modlin acknowledged during the hearing, while still pushing back on some assertions by the appellants.

Echoing the U.S. Supreme Court's decision to overturn Roe v. Wade, Garrison said that his clients had a right to intervene so they could see their efforts to restrict abortion to the finish line.

"What we're trying to do is precisely what the U.S. Supreme Court said that states have the right to do, which is to consider the issue of abortion and then create a policy that comports to the policy preferences of that state," Garrison told the WTE.

While the defendants and the proposed intervenors are in agreement on the issue of abortion access, the inclusion of Garrison's clients in the case will not be clear until an opinion is filed by the Wyoming Supreme Court.

Samir Knox is the Wyoming Tribune Eagle's criminal justice and public safety reporter. He can be reached by email at sknox@wyomingnews.com or by phone at 307-633-3152. Follow him on Twitter at @bySamirKnox.