Abortion critics navigate courts
March 23, 2023
CASPER – Anti-abortion lawmakers in Wyoming celebrated a historic win following the U.S. Supreme Court’s reversal of Roe v. Wade over the summer, vowing to further restrict the procedure by next deleting the rape and incest exemptions in the trigger abortion ban that the Legislature had passed months earlier.
But more than half a year and two lawsuits later, that initial jubilation has quieted as anti-abortion lawmakers in the Equality State face the realities of a complex post-Roe landscape.
On Wednesday, a Teton County judge temporarily blocked the Life is a Human Right Act — a new abortion ban that aimed to accelerate the end of abortions in Wyoming by answering legal questions raised in a previous lawsuit challenging last year’s trigger ban.
Gov. Mark Gordon allowed the bill, which was sponsored by Cody Republican Rep. Rachel Rodriguez-Williams, to become law without his signature.
Even before Gordon had announced his decision, the same plaintiffs that sued over last year’s abortion trigger ban filed a new lawsuit challenging the measure, later amending it to also include a new law that bans medication abortions in Wyoming and is set to take effect in July.
Lawmakers also tried to get involved earlier in the process this time around. Rodriguez-Williams, House Majority Floor Leader Rep. Chip Neiman and Wyoming Right to Life — the same group that unsuccessfully attempted to intervene in the last lawsuit — filed a request by email two hours before Wednesday’s hearing to contribute an amicus brief opposing plaintiffs’ motion for a temporary restraining order.
The 27-page document challenges every plaintiffs’ standing to bring the complaint and rebuffs their assertions that the Life is a Human Right Act violates the Wyoming Constitution. It also includes a report from the American Association of Pro-Life Obstetricians and Gynecologists arguing that elective abortions are not health care. (Owens ultimately rejected the request.)
Secretary of State Chuck Gray also signed on to the amicus brief — a move that political observers said is out of the norm for someone in that role in Wyoming. Former secretary of state Max Maxfield, who’s been critical of Gray in the past, described the move as “very unusual” and couldn’t recall another example of a secretary of state taking similar action.
“I think it’s just outside the purview of the office,” Maxfield said.
Gray, a former state representative, shared a screenshot of a message he posted on Facebook following Owens’ decision when asked for comment about his decision to get involved.
“I’m proud to have signed with Rep. Rachel Rodriguez-Williams and Rep. Chip Neiman onto a pro-life amicus brief prepared to counter the outrageous efforts to stop Wyoming’s pro-life HB152,” Gray wrote in the post. “Sadly, we were not allowed to present that amicus brief yesterday, which is very troubling. Totally disagree with Judge Owens’ decision to place a temporary restraining order on the law passed by the elected legislature.”
Gray didn’t say if he plans to be involved if there is a later attempt by anti-abortion advocates to intervene in the case.
“For the media to attack me for signing onto an amicus brief advocating for something as foundational as life shows how out of touch they are with how public servants should do their jobs,” he said in a text responding to questions about why he felt it necessary to get involved or what makes it within his role to do so. “The pro-life bills passed are clearly Constitutional and we should be able to exercise our right to counter the outrageous arguments brought by the Radical left in their case.”
He declined in a call to elaborate further, saying that the text message “speaks for itself.”
It’s not clear if the same group will try to intervene in the lawsuit. Wyoming Right to Life President Marti Halverson, who drove from Lincoln County on Wednesday to watch the emergency hearing in person, said on Thursday that the group had not yet met to discuss the option.
Shortly after the emergency hearing, the far-right Wyoming Freedom Caucus posted a tweet taking aim at Melissa Owens— the Teton County judge presiding over the case — and accusing plaintiffs of court shopping — filing their case in a place where it's more likely to succeed.
“Forum shopping and judicial activism have resulted in the issuance of a temporary restraining order against the law,” a statement attached to the tweet said.
Wyoming’s lone abortion clinic is based in Teton County. Judge or court shopping isn’t unusual, David Adler, a constitutional scholar, said.
“You can see how the Freedom Caucus would want to maybe criticize somebody for bringing a suit in some particular jurisdiction over another, choosing one court over another. But that happens all the time, and criticisms also occur frequently.”
Ultimately, he added, the case is likely to be appealed to the Wyoming Supreme Court, and that court will probably have final say over the matter.
“Hopefully, if it advances to the Supreme Court, we will get that blind justice,” said Rep. John Bear, a Gillette Republican and chairman of the Wyoming Freedom Caucus. Given the lawsuit, it’s uncertain what anti-abortion lawmakers will try to do in the 2024 legislative session.
“I think there are some things that we’re gonna have to wait and see how the Supreme Court deals with,” Neiman said. (Rodriguez-Williams didn’t respond to the Star-Tribune’s request for comment.)
It’s possible lawmakers will take another crack at deleting the rape and incest exemptions included in the Life is a Human Right Act. Those exemptions were amended into the legislation as part of a compromise with Senate President Ogden Driskill, who had hesitated over whether or not to allow the bill to proceed.
But given that legislative leadership will be the same next year, Neiman expressed doubts as to whether such an attempt would be any more successful next session than it was in the last one.
“Unless there’s a major change of heart or change, a paradigm shift in the way people look at that ... They just really believe that’s a critical part of this. That’s just where it is right now. We’ve just gotta live with what we’ve got,” he said, adding that he believes the Life is a Human Right Act still “moves the ball down the field.”
Gordon noted in a letter explaining his decision to allow House Bill 152 to become law that the Legislature may ultimately have to seek a resolution to the abortion issue through a constitutional amendment. The process for passing a constitutional amendment is stringent, requiring a two-thirds support from lawmakers in the House and Senate before the amendment is even put before voters.
The Wyoming Freedom Caucus may take that tack down the road, but will likely wait to see the case’s outcome before pursuing the option, Bear said.
“I would say we’re not at that point now. I think it should be played out first. If the court is determined wrong, or incorrectly, and we believe that the people of Wyoming disagree with the courts, then yeah, we’d probably go that route. But in the meantime, we’ll let the process work out.”
Pro-abortion advocates will be angling to shape Wyoming’s abortion landscape too.
For Laramie Democrat Rep. Karlee Provenza, who has adamantly advocated in favor of abortion access, pushing through policy that expands access to contraceptives is critical.
Provenza, as well as Evanston Republican Sen. Wendy Schuler, attempted to pass budget amendments this year that aimed to increase access to long-acting reversible contraceptives like IUDs. Lawmakers ultimately struck down both amendments.
“The budget amendments to allow for or to subsidize and support birth control I think are really important, because that ultimately is going to be the thing that deters abortion from happening in the first place,” Provenza said. “The laws that they brought, they don’t stop abortion. They stop legal abortion, but they don't stop abortions.”
Provenza is also considering bringing legislation to the next session that “shifts the burden” in the discussion around abortion off of women and doctors and talks about the role of men — an idea that Neiman said he could get on board with, though his support would depend on what such legislation tries specifically to do.
The temporary restraining order on the Life is a Human Right Act lasts two weeks, after which Owens, the Teton County judge, will decide whether or not to grant a longer block on the law’s enforcement.
For anti-abortion lawmakers, the next months will be a practice in patience as the court sifts through the new legal questions that the Life Is a Human Right raises.
“I think it’s just time now to let this thing go to the Supreme Court, where we can get a decision,” Neiman said.
This story was published on March 25, 2023.