Judge blocks abortion ban anew with preliminary injunction

Ninth District Judge Melissa Owens on Wednesday granted a preliminary injunction in a lawsuit over Wyoming’s abortion “trigger law,” effectively preventing the state’s abortion ban from being enacted. Owens issued her motion at 12:09 p.m., just minutes after a temporary restraining order lapsed and a day after hearing lawyers’ arguments on the matter.

The injunction will likely remain in effect until the final merits of the case are resolved, which could take months if the issue makes its way to the Wyoming Supreme Court as expected. 

In her order, Owens wrote that plaintiffs met their burden in establishing irreparable harm if the abortion ban were to go into effect. Plaintiffs Dr. Giovannina Anthony and Dr. Rene Hinkle, both OB-GYNs, could be subject to “felony prosecution, loss of professional licensure, and up to fourteen years of imprisonment for providing evidence-based health care to her patients in need of abortion services,” the judge wrote.

Owens also addressed the potential merits of the case, writing “the Court could find that the 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.”

Plaintiffs in the case include a pregnant woman, a woman of child-bearing age, the two OB-GYNs and two nonprofits that aim to help women access abortions. 

During Tuesday’s hearing, Owens expressed particular concern over the abortion ban’s exemptions. It remains unclear how an individual might obtain an abortion under the rape and incest exemptions without running afoul of a prosecutor, she said. 

She noted that if a rapist’s conviction is required for a woman to obtain a legal abortion, that process would likely take longer than the pregnancy itself. 

Wyoming’s Legislature passed a “trigger ban” law this spring. The U.S. Supreme Court in June overturned Roe v. Wade, and Gov. Mark Gordon certified the state’s abortion ban law on July 22.

Unlike the July 27 hearing during which she issued a temporary restraining order, Owens did not rule from the bench on Tuesday. About 12 people observed from the gallery, including a clergyman who sat in the back row.

‘A quilt’ of protections

Plaintiffs’ lawyer John Robinson argued the abortion ban would pit the interests of physicians trying to avoid prosecution against those of patients seeking care.

Irreparable harms to patients and doctors if the ban is enacted had been clearly established, Robinson said. 

When granting a preliminary injunction, the court must consider the “substantial likelihood of success on the merits,” Robinson said. He pointed to the temporary restraining order previously issued by Judge Owens as proof plaintiffs had accomplished that. 

In her order granting the TRO, Owens wrote, “All of Plaintiffs’ challenges raise important legal questions involving constitutional rights and require statutory and constitutional interpretation.”

Robinson reiterated a litany of enumerated and unenumerated constitutional rights the abortion ban would violate. He argued constitutions are “a grant of power,” not a “limitation on rights.”

He zeroed in on the right to privacy. 

“Wyoming’s commitment to individual privacy interests is established,” Robinson said. “We’re not just talking about an invasion into a doctor’s office. These are intimate decisions. These are decisions that are made in a family setting in a home, over a dining room table, in the living room, maybe on walks, these are personal family decisions.” 

In order to restrict a right, Robinson said, the state needs to show it has a compelling need to do so and that legislators restricted that right in a “narrowly tailored fashion.” The defense had failed to do so, Robinson argued. 

The Wyoming constitution should be read as one document, he said. “You can’t single out one law. They are like a quilt with multiple layers, and the multiple layers of quilts are there to protect all of us.”

“Courts must be and are, whether willingly or not, the arbiter if there is an unwarranted invasion of the above rights mentioned,” Robinson said. “This case is about our clients’ right to be left alone in their homes, in their families, in their doctor’s offices.”

The two constitutions 

Attorney Jay Jerde represented the state of Wyoming, Gov. Gordon and Attorney General Bridget Hill at the hearing.

Jerde argued the plaintiffs had unsuccessfully attempted to shift “the burden of proof” to the state, and that simply asserting abortion is a fundamental right wouldn’t cut it.

The Wyoming Constitution doesn’t provide greater protections than the U.S Constitution, and that while there exist a few outlier cases where Wyoming’s high court granted more generous protections, equal protections under the Wyoming Constitution have been brought back in line with the U.S. Constitution, Jerde said. 

Because the U.S. Supreme Court did not find abortion to be a constitutionally protected right in Dobbs v. Jackson Women’s Health Organization, analogous Wyoming clauses (free exercise of religion, substantive due process and equal protections) do not protect the right either, he argued. 

“Abortion is not a fundamental right,” Jerde said. “We know that from Dobbs.”

If plaintiffs want to prove abortion is a fundamental right, Jerde said, they need to show it is deeply rooted in the state’s history and traditions. Jerde noted during the hearing and in his brief that the procedure was banned in Wyoming from 1869 to 1977, when it was repealed four years after Roe v. Wade. This is proof, Jerde argued, that the procedure wasn’t an established part of Wyoming’s history. 

On the ballot

Jerde also rebutted plaintiffs’ arguments that abortion is protected under the health care amendment passed into Wyoming’s Constitution in 2012 which states: “Each competent adult shall have the right to make his or her own health care decisions.” 

He argued the context of the amendment was pushback to the Affordable Care Act, and is unrelated to abortion. Based on the ballot language, he said, “there’s no way you could look at it and know abortion was on the ballot.”

The provision gave Wyoming residents the right to make direct payments to health care providers for legally permissible health care, which the Legislature has the right to determine, Jerde argued. 

Before recapping the state’s position, Jerde said plaintiffs’ claims the state’s abortion ban bill is unconstitutional fall flat because “there’s nothing vague about this statement: ‘no abortion shall be performed.’”

Instead, the exceptions are the vague part of the abortion ban, Jerde said, because they don’t make clear what women and doctors need to do or prove to perform an abortion if a patient’s life is at risk or they have been raped. 

Rather than prevent the abortion ban from going into effect, the court could remove the exceptions instead, Jerde said.

Rebuttal

Marci Bramlet, the plaintiffs’ other attorney, pointed out that the state argued harms her clients will inevitably suffer are legally irrelevant.

That argument rests on “an extreme form of originalism,” Bramlet argued. That logic would allow the Wyoming Legislature the right to prohibit interracial marriage, she said. 

Claiming abortion is not deeply rooted in the history and tradition of the state ignores the availability of early term abortions during the time of settlers, according to Bramlet.

Arguing that women do not have a privacy or property interest in their own bodies, Bramlet continued, “ignores both settled law and common sense.”

“A trespass on one’s body is in fact a crime, that’s what a battery is. That’s what a rape is,” Bramlet said. “My body, my property. My uterus is my property.” 

One consequence of the ban is to force women to justify a miscarriage, Bramlet said. In order to prove a miscarriage was not an elected abortion, they would be coerced into waiving their fifth amendment right and their rights to keep medical records private. 

“The questions that the statute creates vastly outstrip the answers that it provides,” Bramlet said. 

Jerde briefly returned to the stand saying, “Clearly both parties have a very different view of who has the burden of proof here.”

Lawyers for Matthew Carr, Teton County Sheriff and Michelle Weber, Jackson Chief of Police, were present but did not make any arguments.