Abortion ban halted
March 23, 2023
JACKSON - A standing-room-only crowd filled the Teton County courtroom Wednesday afternoon as Ninth District Judge Melissa Owens heard nearly four hours of arguments before deciding to temporarily halt enforcement of a new law banning abortion.
Right to Life advocates lamented the ruling while many women who packed courtroom benches said the Wyoming Legislature's new law imperils women's access to health care.
Owens described a key aspect of House Bill 152, dubbed the "Life Is A Human Right Act," as an "end run" around the courts.
"The state cannot legislate away a constitutional right," Owens said.
In 2012, Wyoming residents voted in favor of adding a health care amendment to the state constitution. Article 1, Section 38 states: "Each competent adult shall have the right to make his or her own health care decisions."
When lawmakers voted to replace the 2022 trigger ban with this new law, they stated in the bill that abortion is not health care. Owens criticized that approach in her ruling from the bench.
"The Legislature declaring that abortion is not health care takes away from the duty of this court to decide constitutional questions of law," Owens said, "and that violates the separation of powers."
Now the court has to inquire as to whether abortion is health care, she added.
Courtroom spectators Anika Youcha, 44, and her 13-year-old daughter Victoria, said they do consider abortion health care.
"The negative impact on women," Youcha said, "particularly those whose physical and mental health could be in danger due to pregnancy itself, giving birth and parenthood concerns me."
Victoria added that "there's a large number of children existing in foster care and we need to remember the children who are living already."
Pastor David Bott, from the Redeemer Lutheran Church in Jackson, disagreed with the ruling from a courtroom bench.
"Horribly disappointed because the unborn are once again imperiled," he said. "What did they have, three days of safety?"
Six plaintiffs - two women, two doctors and two health care providers - argued Wednesday that the state's two new laws criminalizing abortion and medication abortions are unconstitutionally vague, and violate Wyomingites' right to make their own health care decisions, as well as their rights to freedom of religion and equal protection.
The near total ban, which passed into law Sunday without Gov. Mark Gordon's signature, includes exceptions for abortions when needed to prevent death, the "substantial risk of death" or "permanent impairment of a life sustaining organ" for the pregnant mother.
Abortions also would be allowed if the fetus has lethal birth defects or in cases of rape or incest when those crimes are reported to police. HB 152 makes providing abortions a felony punishable by $20,000 and/or five years in prison.
A ban against medication abortion did receive Gordon's signature but was not subject to the Wednesday order as a temporary restraining order was not requested for Senate File 109. As of now, SF 109 is set to go into effect July 1.
A preliminary injunction is expected to be filed for both bills.
Whether abortion is health care was at the heart of Wednesday's hearing, with John Robinson, an attorney for the plaintiffs, stating that abortion constitutes "essential medical services."
"We can see it happening in states across the country where bans have taken effect, we know women and patients are losing access to health care," Robinson said. "This type of ban, HB 152, results in health care being delayed and denied by health care providers to patients."
Robinson said that one exception in the bill - that abortion is not criminal when necessary to prevent women from imminent peril - means it's medical treatment.
Owens asked Special Assistant Attorney General Jay Jerde that if the Legislature is stating in HB 152 that abortion is not health care, why is the state "relying on the argument that Section C [of Article 1, Section 38] gives authority to the Legislature to regulate health and well-being?"
Jerde said the words health and health care are not equivalent. Owens followed up with another question.
"An abortion can only be performed by a licensed medical professional and [abortion pills] can only be prescribed by a doctor, so what authority does the Legislature have to declare that abortion is not health care when our laws only allow a licensed medical professional to administer [abortions]?"
"I'm not sure you're going to find an answer to that question," Jerde said. "The intentional killing of an unborn child cannot be considered health care. Both the woman and the child have constitutional rights. If you view it from the other perspective [i.e., the child's] it clearly is not health care."
The plaintiffs also delved into whether HB 152 is unconstitutionally vague and violates freedom of religion and equal protection.
"The vague nature of this bill is intended to be difficult to interpret so professionals and hospitals are discouraged from providing any services that may land them in a jail cell," Robinson said. "It's unworkable when it comes to fatal fetal anomalies, molar pregnancies, ectopic pregnancies, all situations doctors face on a day-to-day basis. No Legislature can come up with all of those."
Jerde said the exceptions in the bill "balance the rights of the pregnant woman and the rights of the unborn baby."
Robinson stated it's impossible for physicians to know if a child with "lethal fetal anomalies" will die within hours of being born, yet the bill states babies must die "within hours" post-birth to fall under the lethal anomalies exception.
When asked by Owens if he believes the language of the bill stating that life begins at the moment of conception does not align with one particular religious view, Jerde cited the pre-Roe v. Wade Wyoming.
"That is consistent with how Wyoming regulated abortion before Roe," Jerde said. "That's been the legislative view in Wyoming for over 100 years."
Kathleen Dow, a Jewish plaintiff, argued in filings that the state is enforcing a religion.
"I cannot think of a stronger form of coercion than forcing a woman to carry a pregnancy to term against her will or against her religion," Robinson said.
Jerde said any similarity with a particular religion is merely "coincidental."
Robinson and Marci Bramlet also argued that the ban violates the right to equal protection, as it "only restricts health care needed and elected by women."
Jerde argued that men and women are not "similarly situated."
"Men and women are similarly situated in that they are both competent adults," Bramlet said. "But only one adult can seek complete, ethical evidence-based health care."
SF 109 states "it shall be unlawful to prescribe, dispense, distribute, sell or use any drug for the purpose of procuring or performing an abortion on any person." Violators of that ban face a misdemeanor charge punishable by imprisonment for not more than six months, a $9,000 fine, or both.
Dr. Giovannina Anthony, one of the plaintiffs in the case, works at the only facility in the state still practicing abortion care. The Jackson clinic provides only medication abortion services.
Anthony said that since Monday, she has canceled six appointments. Even though Thursday is her day off, after Owens' order, she said she plans to be in the office providing abortion services.
Dr. Rene Hinkle, another doctor who is suing the state, provides abortions only in emergency, not elective, situations. Hinkle said in court documents the ban may lead to increased mortality due to a lack of understanding of what constitutes an elective abortion.
Once the District courtroom filled up, Clerk of District Court Anne Sutton said that overflow seating was made available in the Circuit courtroom.
Wyoming Right to Life President Marti Halverson drove up from Lincoln County despite the slick, snowy roads to watch the proceedings.
"The state did a great job today, and Wyoming Right to Life is disappointed," she said.
Maggie Hunt, the chair of Planned Parenthood of the Rockies, also attended the hearing.
"Eight hundred Wyoming women traveled to Colorado clinics in the last fiscal year," Hunt said.
If the law is allowed to stand, Hunt said, "women are going to be prevented from getting the health care they need."
This story was published on Mar. 23, 2023.