Pro-choice plaintiffs ask judge to skip trial, bar Wyoming abortion bans

A ruling on the constitutionality of Wyoming’s abortion bans could come sooner than expected. 

Plaintiffs challenging the state’s near-total ban and medication abortion ban have asked 9th District Court Judge Melissa Owens to skip the trial currently scheduled for April 15 and issue a summary judgment in their favor instead.

Put simply, the plaintiffs contend in a filing made last week that there’s no need for a trial because there is no dispute over the material facts of the case. Instead, only legal questions remain. 

The collection of women, doctors, clinic and advocacy organization challenging the restrictions have asked the judge to declare that both bans violate Wyomingites’ constitutional rights and permanently bar the state from enforcing either. 

More than 650 pages of filings outline the plaintiffs’ case, including a list of 90 material facts it says are undisputed and a separate list of six specific constitutional concerns. 

The defendants — which include the state, governor, attorney general, Teton County sheriff and Jackson’s chief of police — are expected to respond at a later date. 

Both bans are on hold pending an outcome in the case.

Right to health care access

The Wyoming Constitution guarantees “each competent adult” the right to make health care decisions and only allows the Legislature the ability to determine “reasonable and necessary restrictions” in order to “protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution.”

The bans, however, do “not protect the health of women” in Wyoming, the plaintiffs contend, nor do they further “any conceivable governmental interest.”

Citing the experiences of doctors and pregnant women in both Wyoming and Texas — a state which has similar abortion ban language — the filing recounts agonizing details of the harm it suggests could ramp up if these laws were to go into effect. 

Several Texans are suing their state after they say their life and health was threatened as their doctors weighed requirements under the state’s abortion ban. 

Vagueness

The plaintiffs raise other constitutional issues, including the laws being “void for vagueness.” In Wyoming, that happens when a law “fails to give a person of ordinary sensibility fair notice that the contemplated conduct is forbidden.”

Longtime Wyoming prosecutor Michael Blonigen provided written testimony that the lack of clarity about penalties for a woman who performs an abortion on herself is an example of such unconstitutional vagueness. The bans prescribe stiff penalties for abortion providers but exempts women “upon whom” an abortion has been performed.

The abortion exception for sexual assault also made little sense to Blonigen, who noted that the assault reporting requirements are unclear and burdensome. That is, the near-total ban doesn’t specify what law enforcement agency a report must go through, whether the report needs to meet a certain standard and how far a health care provider must go to assess the report for accuracy.

The issues with reporting are especially acute, he noted, for kids who are abused by their parents. Minors need a parent or guardian to file the reports of sexual assault, per the law’s language. 

“Based on my training and experience this language will result in the failure to provide abortion care to significant numbers of victims of childhood sexual abuse,” he wrote.

Even when an abortion doesn’t take place, he said the language of the near-total abortion ban is broad enough to still end in charges for someone who is allegedly “abetting” an abortion, which he said isn’t properly defined. 

“As such, any person involved in any step of the abortion care would possibly be subject to prosecution depending on how broadly the local prosecutor defined the term abetting. This increases the likelihood that prosecution will be brought for improper reasons including personal political and religious beliefs,” he states.

Dr. Ghazaleh Kinney Moayedi, an OB-GYN and researcher took similar exception to instances of medical ambiguity in the laws, testifying that terminology used in these bans may sound technical — like “separation procedure” — but has no medical meaning.

“The ‘exception’ language of The [Wyoming] Abortion Ban invents medical terminology in an attempt to falsely assert that abortion care is not healthcare,” she wrote. “Without using legitimate medical terminology, healthcare providers cannot follow the law because it is unclear when exceptions to The Abortion Ban would be allowed.”

The level of ambiguity could even threaten birth control methods like IUDs and emergency contraception, plaintiffs stated. Contraceptives allowed under the medication ban include those “administered before conception,” and according to Moayedi, some kinds of contraception either do or could simply prevent implantation of a barely-fertilized egg.

Equal protection and unwritten rights

The Wyoming Constitution includes protections for all citizens, regardless of race or gender. 

The plaintiffs argue the bans violate those protections because they only affect women. 

“The statutes undeniably deprive women of control over their own health care and bodily autonomy. Even worse, the laws segregate women into opposing groups,” the filing states with emphasis, “those who are deserving of the right to access essential health care and those who are not.” 

Wyoming’s constitution promises an “inherent right to life, liberty and the pursuit of happiness,” plaintiffs write, adding that the constitution’s list of rights don’t necessarily mean other unenumerated rights are lost. 

Resting within these two parts of the constitution are “natural rights” not laid out in print, but are still existent, plaintiffs state. 

“Among the most important natural rights is ‘the right to be let alone,’” the filing notes. 

Plaintiffs pointed to court cases in Kansas and Montana, where state supreme courts found women have inherent and natural rights to bodily autonomy and family planning, which those judges held includes abortion. 

“For decades, these were decisions that Wyoming women made on their own, often in consultation with their loved ones and other trusted individuals, including health care providers and religious and spiritual advisors,” the plaintiffs state. “By intruding on these most personal of decisions, the Wyoming legislature seeks to infringe upon the natural rights of all Wyoming women.”

Even women’s abilities to pursue happiness could be hampered by the bans, plaintiffs contend. Women who try to get an abortion and can’t are more likely to lower future goals, less likely to leave abusive relationships, are less likely to be able to have finances to meet their basic needs, according to Dr. Anthony. 

Divine inspiration?

The abortion bans are based on the premise that life begins at conception and must be preserved.

This is a purely theological idea, plaintiffs argue, meaning that lawmakers are unconstitutionally trying to force their religious doctrine on other Wyomingites. 

“[T]he actual purpose of the law is to impose on all Wyoming citizens the sectarian, religious viewpoint that life begins at conception,” the filing states, citing the public statements of some of the laws’ authors.

That position runs contrary to the beliefs of many religious traditions including Judaism, Islam and some christian denominations, to say nothing of agnosticism and atheism, the plaintiffs contend. That includes one of the plaintiffs, Kathleen Dow, who practices conservative Judaism. 

Foreshadowing

Wyoming lawmakers, especially those with legal backgrounds, voiced several constitutional concerns about the abortion bans during the legislative session. Even Gov. Mark Gordon, a Republican, signaled his concerns when he signed the medication ban into law and let the near-total ban go into effect without his signature.

“I believe now more than ever that if the Legislature seeks final resolution on this important issue, it ultimately may have to come through a Constitutional amendment,” he wrote in his letter to the Secretary of State. 

Rep. Rachel Rodriguez-Williams (R-Cody), who sponsored the near-total ban and cosponsored the medication ban stated during the legislative session that the amount of discussion about the bans being unconstitutional “baffles” her. “Honestly, I think it is being thrown around to fear monger. And the people of Wyoming are tired of being fear mongered.”

Both bills easily garnered enough votes to pass the Legislature with few Republicans — even those who raised concerns — willing to vote against them.

WyoFile is summarizing portions of the plaintiffs’ case calling for summary judgment in this story. We will similarly cover the state’s responses as they are filed and become available.