Wyomingites temporarily regain access to abortions | Local News

Licensed physicians would be prohibited from administering or prescribing any medicine or substance for the purpose of an abortion, or to use “any instrument, device, means or procedure upon a pregnant woman” with the intent of causing an abortion under the new law. Very few exceptions were provided, and women with pregnancies as a result of incest or sexual assault had to provide a report from a law enforcement agency in order to qualify for an abortion.

Gov. Mark Gordon took until last Friday to decide whether to sign or veto House Bill 152 and even questioned its constitutionality and possible infringement upon the separation of powers. But he allowed the legislation to go into law without his signature, leading to an effective ban at midnight Saturday.

It was these same concerns that played a key role in the decision by Judge Owens to grant the temporary restraining order.

“Wyomingites voted into law that they have a fundamental right to make their own health care decisions, and, by doing so, they also agreed that the state can put reasonable and necessary restrictions on that, as long as there is no undue government infringement,” Owens said. “The Legislature declaring that abortion is not health care takes away from the duty of this court to decide constitutional questions of law, and that violates the separation of powers.

“To declare abortion is not health care, when there may be evidence to show that it is. The Legislature cannot make an end run around … essentially providing a constitutional amendment,” she said.

Owens made her comments at an emergency hearing that came together just days after the ban went into effect and a lawsuit was filed.

Plaintiffs made up of health care providers, a University of Wyoming law student, a nonprofit dedicated to ensuring residents are able to access and afford abortion, as well an abortion clinic that took part in the trigger abortion ban lawsuit acted quickly.

They filed a complaint Friday in Teton County District Court and requested a motion for a temporary restraining order and emergency hearing. The emergency hearing was approved Monday and scheduled for Wednesday afternoon.

Judge Owens’ decision followed three hours of arguments by the plaintiffs’ attorneys, John Robinson and Marci Bramlet, and attorneys representing the state. The lawyers will now prepare for a preliminary injunction hearing.

Owens said the court needs to further inquire if abortion is health care and whether it can be established that the new law is a reasonable and necessary restriction that has not placed undue government infringement on citizens.

“The state cannot legislate away a constitutional right. It’s not clear if abortion is or isn’t health care. The court has to then decide that,” she concluded. “For today’s purpose, based on the legal standards required to grant a temporary restraining order, the court finds that the plaintiffs have met their burden.”

Attorney John Robinson was the first of the lawyers to make a case for the restraining order and said the law was the Legislature’s latest effort to “strip women of their rights to equality, health care and religion during a very specific life cycle.

“The Legislature doesn’t consider the woman an equal member of the human race in Wyoming during that period of time,” he said.

Robinson demonstrated their arguments for how the law would cause harm to women who want an abortion or to seek health-related care to abortion services. They would be forced to carry to term against their will, remain pregnant until they can get the resources to travel out of state or attempt to self-manage their abortions outside of the medical system.

Circumstances were outlined in the complaint, in which women could be those are struggling to pull their children out of poverty, finish school, escape an abusive partner, overcome addiction and sexual assault survivors who do not report their assault to law enforcement. It spoke to families “grieving fetal diagnoses which they are ill-equipped to handle,” as well.

The attorney discussed the impact on physicians, and not just women seeking abortions. The law was alleged to impact their reputations or licenses, relationships with patients and a health care provider’s ability to meet “ethical obligations to provide evidence-based health care.”

Although there was an emphasis placed on the negative impacts, Robinson followed up by questioning inconsistencies in the definition of abortion throughout multiple bills and bringing forward constitutional concerns. He also argued the Wyoming abortion ban was based on the view that life begins at conception, and “this is a religious viewpoint. It has no attachment to science whatsoever.”

“This statute is unconstitutionally vague, on its face violates Article 1, Section 38 of the Wyoming Constitution in regards to health care access and the right to make health care decisions,” he said. “It violates Articles 6 and 7 for vagueness, and then it doesn’t give these doctors or anyone in their offices or anyone who might be happening to give someone a ride through a doctor’s office for abortion care — it doesn’t give them notice of what’s legal or illegal.

“In fact, it basically makes it so hard to figure out, the best course of action is to do what’s happening all over the country and to stop offering care,” Robinson said.

He was met with pushback from the state’s defense, which was presented by Special Assistant Attorney General Jay Jerde. He first argued against two declarations included in the plaintiffs’ lawsuit and said they shouldn’t be considered because they were giving legally irrelevant opinions about policy matters and the history of religion.

Jerde said Wednesday’s hearing was not the forum for a policy debate, and it’s the court’s responsibility to determine whether the “Life is a Human Right Act” is constitutional or not.

He said health care has always been regulated in Wyoming, and the Legislature was careful to retain its authority to decide what health care is available. Jerde said “it’s almost absurd to think that Article 1, Section 38 gives individuals the right to have whatever health care services they want.”

“If someone is diagnosed with a medical condition that can be treated with marijuana, under the plaintiff’s interpretation of Article 1, Section 38, they would be free to possess and consume marijuana, regardless of the state laws that prohibited and criminalized it,” he said. “They would have a constitutional right to do that. And that just makes no sense whatsoever.”

While Judge Owens recognized the legislative branch’s authority, she asked Jerde how the state could rely on the argument if the abortion law specifically states abortion is not health care.

“How can you state it’s not health care?” she said. “But yet the authority to enact a law derives from the exact same constitutional amendment that Wyoming voted into law.”

He said the constitutional amendment still represents the Legislature’s historic role in regulating health care and health decisions, but moved on to further debate the original purpose of Article 1, Section 38, life beginning at conception, and taking the right of the pregnant woman and the right of the unborn baby under consideration.

Jerde also said there is no equal protection argument to be made, because when it comes to pregnancy and abortion, men and women are not similarly situated. Finally, he discussed how irreparable harm could not be proven for the plaintiffs and examples could not be pulled from other states. This would mean they didn’t fulfill both the requirements for a temporary restraining order, and he said it should be denied.

But Owens still pushed on the authority of the Legislature to declare abortion is not health care when Wyoming laws only allow a medical professional to administer one.

“If you look at the legislative history, I’m not sure you’re gonna find the answer to that question,” Jerde concluded. “In terms of the Legislature finding that abortion isn’t health care for purposes of the Life Act — when they say it’s the intentional killing of an unborn child, that appears to be their premise, that intentional killing of an unborn child cannot be considered to be health care. It just can’t.”

While this wasn’t enough to convince Owens not to issue a temporary block on the “Life is a Human Right Act” now, the state and plaintiffs will have another opportunity to dig further into their stances. A preliminary injunction hearing will be scheduled in the coming months, and the right to abortion in Wyoming will be further probed at that time.