Abortions Remain Legal in Wyoming as Judge Again Halts Ban From Going Into Effect

By Jacob Gardenswartz

Special to the Wyoming Truth

In a major victory for abortion rights supporters, Teton County District Judge Melissa Owens granted a preliminary injunction against Wyoming’s near-total abortion ban on Wednesday, halting the policy from being implemented for as long as it takes for the court to adjudicate the matter.

Owens’ order — filed at 12:07 pm MT and made public half an hour later —was another eleventh-hour development in what has become a complex legal battle over the fate of abortion rights  in Wyoming. During the seven minutes before her order was filed, performing an abortion in Wyoming snapped back to being a felony, punishable by up to 14 years in prison except in rare cases of rape, incest or health risks.

On July 27, the day the abortion ban was set to take effect, Owens granted a temporary restraining order barring the policy from being enforced for 14 days in response to a lawsuit from a coalition of Wyoming residents, medical professionals and abortion-supporting nonprofits who argued the law violates the Wyoming constitution. Owens’ latest ruling, issued the day her previous order expired, extends that prohibition and protects access to abortion until the case is ultimately decided, something which could take several months.

In a heated two-and-a-half hour hearing on Tuesday, attorneys on both sides of the issue argued for and against the injunction. Representing the plaintiffs, John Robinson and Marci Bramlet argued that the law as written violates several clauses within the Wyoming constitution and would irreparably harm those seeking abortion in the state, as well as medical professionals providing abortion services.

“This is targeting women,” Robinson said. “This is targeting women’s health care. If this ban goes into effect, it would be a sea change, a seismic change to women’s health care throughout our state.”

Special Assistant Attorney General Jay Jerde, representing the state, argued conversely that Wyoming citizens do not have any fundamental right to abortion, and the law banning them should stand.

“The issue at the heart of this case is whether the Wyoming constitution confers a right to abortion,” Jerde said. “The answer to that is no, either implicitly or explicitly. Abortion is not a fundamental right.”

In her order granting the injunction, Owens appeared sympathetic to many of the arguments the plaintiffs presented, pointing to “significant potential harms” that policy could impose both on individuals seeking abortions and doctors providing them.

In the event of an unforeseen abnormality during a pregnancy, the abortion ban could force people to “delay or be denied evidence based medical care,” Owens wrote. Physicians, meanwhile, could face “felony prosecution, loss of professional licensure, and up to fourteen years of imprisonment for providing evidence-based health care” to their patients.

Owens also agreed with plaintiffs that the abortion ban likely violated several provisions of the Wyoming constitution, including Article 1, Sec. 38, which guarantees that “each competent adult shall have the right to make his or her own health care decisions.”

In Tuesday’s hearing, Jerde argued that provision did not apply to abortion care, as the Wyoming constitution did not explicitly include the word “abortion,” and similarly claimed that since the amendment inserting that language into the constitution was passed as an effort to push back against the Affordable Care Act, it shouldn’t extend to protect abortions.

“When people were talking about Article 1, Sec. 38, they were talking about the Affordable Care Act and what can we do to push back on that,” Jerde said. “It’s just not within the facts that we’re kicking around at the time that there was any real discussion about Article 1, Sec. 38 conferring a right to abortion.”

Yet Owens rejected that argument as well. That provision in the constitution “unambiguously provides competent Wyoming citizens with the right to make their own health care decisions,” Owens wrote, adding further that “a decision to have an abortion is a health care decision.”

“[T]he Wyoming Constitution affords all Wyoming citizens with a fundamental right to make their own health care decisions and that includes a Wyoming woman’s right to make her own decision regarding abortion,” Owens wrote.

Supporters of abortion rights in the Equality State quickly celebrated the ruling. Julie Burkhart, founder and president of Wellspring Health Access, a plaintiff in the case, called Owens’ order an “important victory,” though she noted that “ 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,” Burkhart’s statement added.

A representative for Republican Gov. Mark Gordon, who appointed Owens to the bench in December, said in a statement that “The Attorney General will continue to defend the state’s position on this issue in the courts.” Representatives for Attorney General Bridget Hill did not respond to a request for comment.

It remains unclear how long it will take until a final decision is rendered on the constitutionality of the abortion ban. Owens noted that her analysis leading her to block the policy from taking effect applied only to the question of whether to grant the preliminary injunction. Still, she wrote that she believed plaintiffs “can likely succeed” in showing that the law is unconstitutional under two provisions.

Whatever Owens’ final decision may be, the issue is expected to make its way up to Wyoming’s Supreme Court, according to legal experts. A telephone conference to determine next steps in the case is scheduled for Aug. 24.