By Kate Ready
Jackson Hole News&Guide Via Wyoming News Exchange 

Judge: State must clarify abortion laws


August 3, 2023

JACKSON - The state must clarify two abortion laws, a Teton County judge ruled last week.

The order comes after the state refused to respond to a series of questions regarding the medical literature physicians can rely on, the religious motivation behind the abortion laws, and how the statutes further specific governmental interests.

In the July 31 hearing, 9th Judicial District Judge Melissa Owens determined that some, but not all, of the plaintiffs' questions were relevant to resolving whether the two abortion laws are constitutional.

Peter Modlin, an attorney for the plaintiffs, said nearly half of their questions point to the vagueness of the laws.

"We've asked the government to explain the meaning of some of the key statutory terms that we believe are vague and point us to guidance and reference materials that will help physicians understand these terms, because they are not medical terms," Modlin said in the hearing.

Owens agreed, giving the state 30 days to identify which medical publications physicians could refer to when navigating the laws' exceptions.

The first challenged law, the Life is a Human Right Act, states that all unborn fetuses are granted the unalienable right to life and that abortion deprives the unborn "of life or liberty without due process of law." A series of medical exceptions allows physicians to provide abortions for lethal fetal anomalies, ectopic pregnancies and for "reasonable medical judgment." Now the state must elaborate on where physicians turn to determine what's reasonable.

The plaintiffs - Jackson OB-GYN Dr. Giovannina Anthony, Dr. Rene Hinkle, two women of childbearing age and two abortion access nonprofits - are also challenging a separate law prohibiting medication abortions. It is the first ban on abortion pills to be passed in the country.

According to the court's order, the state must expand on the "appropriate medical judgment" exception listed in the ban, as well as how physicians can determine when abortions fall under "treatment necessary to preserve the woman from an imminent peril."

Both laws have been halted from taking effect while the case plays out.

Owens also ordered the state to identify its specific governmental interests and how the laws further those interests.

"Interests are not subject to courtroom fact-finding," Special Assistant Attorney General Jay Jerde said in the hearing.

He added that the state planned to outline those interests at a later date, but Modlin said that was "not appropriate."

"They want to withhold this critical information until the last possible moment," Modlin said. "The purpose of discovery is to get out all the information so everyone can fully prepare."

The state was not ordered to answer every question, however. Owens denied the plaintiffs' request that the state admit to certain statements made by lawmakers. For example, one advocate for the Life is a Human Right Act, Rep. Chip Neiman, R-Hulett, wrote on his campaign site that he believes all human life is created with "a specific purpose by God's Divine Hand."

The plaintiffs wanted this to be admitted as evidence that lawmakers were infringing on Wyominigtes' freedom of religion. One of the plaintiffs, Kathleen Dow, is a Jewish person who wrote in court filings that her faith grants her the right to end a pregnancy.

The lawmakers "expressly tie their belief that life begins at conception to their religious beliefs," Modlin said in the hearing.

Owens found that information on lawmakers' websites and in their campaign materials was "irrelevant."

One audience member, Christine Lichtenfels, said the state's blanket refusal surprised her more than the outcome of the hearing. Lichtenfels heads Chelsea's Fund, an abortion access group that's one of two nonprofit plaintiffs in the case. She said she felt the state was trying to "hide the ball."

"What I found surprising was the initial refusal on the part of the state to provide anything," Liechtenfels said.

"I'm grateful that we're taking another step towards ensuring that Wyomingites have the freedom to control their bodies and towards stopping aggressive governmental interference where it doesn't belong."

Owens gave Jerde a month to provide the information. However, a pending appeal on behalf of three abortion access opponents may impact how soon the state answers the ordered questions.

In a notice of appeal filed Friday, three of four proposed intervenors that were denied from joining the case June 3 are asking the Wyoming Supreme Court to review the decision. Secretary of State Chuck Gray did not join the request to appeal.

Owens ruled from the bench that the anti-abortion advocacy efforts of the three intervenors - state Rep. Rachel Rodriguez-Williams, R-Cody, who sponsored the Life is a Human Right Act; Rep. Neiman; and Right to Life of Wyoming - did not rise to the level of intervening, as their interests are being adequately represented by the Attorney General's Office. Owens added that she didn't want to rehash the political debate. This is the second time Owens has denied proposed intervenors who want to defend the laws.

To halt the proceedings until their appeal is resolved, the prospective intervenors would need to file for and be granted a pause in the case. That could be filed in two places - Teton County District Court or in the Wyoming Supreme Court. As of press time Tuesday, no motion was filed.

Attorney for the denied intervenors, Tim Garrison, stated in court that the four advocates intended to present testimony from physicians to contradict the claim that abortion is health care, evidence around how Wyoming's Constitution was not meant to protect abortions, testimony showing how the current statutes "accommodate all health care concerns raised by doctors," and finally, evidence that the laws in question are not vague.

Garrison works for a conservative Christian legal advocacy group, the Alliance Defending Freedom.

Both sides intend to file requests for summary judgment, arguments outlining why the judge could make a final decision on the case without it going to trial. The next hearing is scheduled for Dec. 14.

This story was published on August 9, 2023.


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