Both Sides in Abortion Ban Lawsuits Want to Skip Trial

By Jacob Gardenswartz

Special to the Wyoming Truth

As the drawn-out legal battle over the fate of abortion rights in Wyoming continues, there’s one thing both sides agree on: the matter does not need to go to trial.

Lawyers representing the state of Wyoming and seeking to uphold the state’s controversial abortion bans, and the group of female plaintiffs, reproductive health care providers and an aid organization seeking to have them struck down, have both filed motions in recent weeks requesting Teton County District Court Judge Melissa Owens issue what’s known as summary judgment — or render her opinion without hearing a full trial.

Of course, both parties seek opposite outcomes: in their summary judgment request, the plaintiffs’ attorneys argued that the “statutory terms and the undisputed facts establish that the [abortion bans] violate numerous provisions of the Wyoming Constitution and will result in irreparable injury to Plaintiffs and other Wyoming women and physicians, and there is no adequate remedy at law.” They asked the court to declare the near-total abortion ban and first-in-the-nation medical abortion ban unconstitutional and enjoin state officials from enforcing them.

The state, meanwhile, argued in its response that “Plaintiffs must show beyond a reasonable doubt that the [bans] are unconstitutional in all of their applications. Absent such a showing, they have not demonstrated actual success on the merits.” They requested Owens dismiss the lawsuits outright and let both bans proceed.

All parties are scheduled to meet for a hearing on Dec. 14 where Owens is expected to respond to the motions. She could decide the outcome of the cases then and there, opt to go forward with the trial planned for next April or land somewhere in the middle — issuing judgments on certain questions before her without rendering a full ruling.

In the meantime, with both bans temporarily enjoined, most abortions before the point of viability, approximately 24 weeks into pregnancy, remain legal in Wyoming.

Who’s an expert?

Until the December hearing, the legal jockeying over reproductive care will continue on paper, as both sides file motions seeking to establish what will and won’t be allowed to be introduced as evidence should the trial proceed.

The plaintiffs have put forward testimony from a number of “expert” witnesses — reproductive care doctors, women who would be impacted by the bans and religious scholars who study different groups’ approaches to pregnancy termination.

Among the proposed experts is Julie Burkhart, founder and president of Wellspring Health Access — one of the only facilities providing surgical abortion procedures in the state and one of the plaintiffs seeking to have the bans struck down. Last month, the arsonist who set fire to that facility last year and delayed its opening was sentenced to five years in prison.

State representatives, meanwhile, are seeking to have each of the plaintiffs’ witnesses declared inadmissible. In a September filing, Jay Jerde, the Special Assistant Attorney General overseeing the state’s defense of the abortion bans, suggested the witnesses’ testimony was “not relevant” to the case, arguing they were providing opinions on matters that are ultimately questions of law and wouldn’t help the judge understand any of the evidence in question.

Owens is expected to rule on the admissibility of witnesses around the time of the December hearing, if not before. If history is any guide, Owens could choose to allow some witnesses to testify but not others — not unlike how she required the state to answer most but not all of the discovery questions the plaintiffs asked of the state.

Is abortion health care?

Right now, the parties are debating another central question in the case: whether abortion qualifies as health care.

The plaintiffs argue it does, pointing to statements from the American Medical Association and American College of Obstetricians and Gynecologists, with the latter noting abortion is an “essential component of comprehensive medical care, and people need unimpeded access to the full spectrum of reproductive health care options.”

But a small group of Wyoming doctors disagree. Late last week, they filed an amicus brief in support of the “Life is a Human Right” Act, one of the abortion ban laws in question, suggesting it “allows physicians to provide life-preserving treatment for pregnant women experiencing dangerous physical complications of pregnancy, while simultaneously offering many unborn babies a chance to survive.”

Four Wyoming physicians signed the proposed brief: Samantha Michelena and Michael Nelson, who currently work as OB/GYNs in Cheyenne, and Timothy Hallman and David Lind, both now retired from their practice. Attesting to the Hippocratic Oath all doctors take to “do no harm,” the signatories suggest “no Wyoming physician has the professional duty to harm an unborn baby or any other patient.”

Yet Wyoming already has a law on the books, statute 35-6-130, which ensures doctors don’t face civil liabilities for refusing to perform abortion services. Should abortion remain legal, no Wyoming doctor would be forced to perform abortions; rather, those willing and able to do so would be allowed to provide pregnancy termination procedures.

Giovannina Anthony, an OB/GYN in Jackson and one of the plaintiffs trying to get the bans struck down, was highly critical of the other doctors’ argument. “They’re on the wrong side of medical ethics,” she told KOHL. “They’re on the wrong side of medical judgment. They’re on the wrong side of real, everyday obstetric care in Wyoming and in the country.”

Thomas Szott, a Cheyenne-based attorney representing the anti-abortion doctors, declined to comment beyond the proposed brief.