Abortion ban halted after Wednesday hearing finds possible irreparable harm

By: 
Kate Ready with the Jackson Hole Daily, Via the Wyoming News Exchange

JACKSON — Overcome with emotion, Dr. Giovannina Anthony tearfully hugged her attorneys minutes after a court hearing temporarily halted Wyoming’s abortion ban the same day it went into effect.

Calling it an “extraordinary remedy,” 9th District Court Judge Melissa Owens granted the temporary restraining order after concluding that Anthony and her patients faced “possible irreparable harm.”

The order protects abortion access until the next hearing, currently set for Aug. 9.

“The court feels the plaintiffs have met the burden,” said Owens, ruling from the bench after the near two-hour hearing in Jackson.

Owens said two of the plaintiffs, Danielle Johnson, a registered nurse who is 22 weeks pregnant, and Dr. Anthony, a Jackson OB-GYN who is one of the only abortion providers in the state, had “the most compelling arguments.”

Johnson could face a health emergency in the second half of her pregnancy, her attorney John Robinson said, and “this statute puts zip ties around her doctor’s wrists.”

The Jackson law firm Robinson Welch Bramlet filed the lawsuit Monday on behalf of six plaintiffs against the state of Wyoming, Gov. Mark Gordon, Attorney General Bridget Hill, Teton County Sheriff Matt Carr and Jackson Chief of Police Michelle Weber. Wyoming Special Assistant Attorney General Jay Jerde appeared via video to defend the state.

The U.S. Supreme Court’s decision to overturn Roe v. Wade on June 24 triggered a Wyoming law banning most abortions in the state. Lawmakers passed the trigger bill in March during a budget session. After a review, Gordon, a Republican, certified the law to take effect Wednesday.

While presenting arguments in favor of temporarily restraining the enforcement of the abortion ban, Robinson argued that doctors can no longer practice the evidence-based care they’ve been taught.

“The state is proposing a seismic change to women’s health,” Robinson said.

Jerde said the restraining order should not be issued, stating Anthony and the other plaintiffs had not proven irreparable harm.

“If an individual is charged criminally, they have an adequate remedy,” Jerde said. “They can assert unconstitutionality in criminal court.”

But Owens questioned that remedy: “I think we all know that criminal prosecution doesn’t occur quickly. You’re saying that’s their remedy at that point?”

Jerde said that question was outside the narrow context of Wednesday’s hearing to determine if a temporary restraining order would be issued.

Plaintiffs’ attorney Marci Bramlet countered that her clients would be irreparably harmed by damage to their reputations, businesses and goodwill following an arrest and criminal charges.

Before issuing her ruling, Owens asked Jerde about the vagueness of the state law restricting abortion.

“Dr. Anthony asserts that if she has to make a decision with regard to a woman’s health or health of a fetus that she has no guidance under the current statute,” Owens said. “How is Dr. Anthony to know under the current statute what to do?”

Jerde replied,“That question doesn’t fall under the umbrella of what the plaintiffs are trying to show here today.”

Robinson and Bramlet offered further arguments that the six plaintiffs — two women of child-bearing age, two physicians, as well as Chelsea’s Fund and Circle of Hope Healthcare — faced irreparable harm if the abortion ban went into effect.

“Pregnancy is physically, financially and emotionally challenging,” Robinson said. “This statute will force pregnancy, and all the risks associated with it, it will force travel, the delays associated with this risks women’s health more and will force unsafe methods of managing pregnancy.”

Robinson said the statute would also harm others besides a patient or physician.

“We aren’t just talking about the woman who suffers,” Robinson said. “Because that parent-child relationship includes her other children and her relationship with them.”

Owens ultimately found that physicians and patients may face the possibility of irreparable harm.

“The fact that someone can possibly have life-threatening complications and the new statute does not mention medical providers’ judgment, but the previous statute did, creates ambiguity for the patient,” Owens said in her ruling. “It also creates irreparable harm for Dr. Anthony because she’s left without guidance.”

Another key focus in the hearing was whether the right to an abortion is afforded to women in the Wyoming Constitution. 

Attention was especially paid to Article 1 Section 38 of the state Constitution, which states, “Each competent adult shall have the right to make his or her own health care decisions.”

“Since the state’s inception, all Wyomingites had the right to be left alone by the government, as well as the right to equality, privacy and the uniform application of the law,” Robinson said. “The Constitution has left decisions on health care to individuals, their doctors, families and spiritual advisors. It has not been in the habit of imposing morals.”

Jerde said the word “abortion” never appears in the document.

“This really comes down to whether or not there is a right to abortion in the Wyoming Constitution,” Jerde said. “The Constitution does not explicitly or implicitly confer the right to abortion.”

Bramlet countered this, stating that the words “hysterectomy” and “vasectomy are also not mentioned in the Constitution” but those reproductive decisions are retained.

Bramlet also argued that abortions constitute health care, citing organizations like the World Health Organization, the American Medical Association and the Society for Maternal and Fetal Medicine, which define abortions as an “essential part of comprehensive health care.”

Jerde argued that the statute affording Wyoming citizens the right to make their own private health care decisions should be viewed through the lens of its specific intent when it was ratified by voters.

“That statute was supposed to push back on the Affordable Care Act,” Jerde said, “not to implicitly confer the right to an abortion.”

Robinson also argued in light of the federal Constitution, saying the right to decide the composition of one’s family and “the rearing of our children might be one instance of the pursuit of happiness.”

“If a state can so easily tell a woman that she must have a child, can a state tell a family they cannot have a child?” Bramlet asked. “I think we can agree that’s a state no Wyomingite would want to live in.”

The issue of religious freedom afforded by the state constitution was also raised, predominantly whether the abortion ban violates the “right to conscience” Wyomingites are afforded.

“We’re not in the business of imposing our views on others,” Robinson said.

“We are talking about imposing a moral view concerned with protecting fetal life at the cost of prison, health and suffering,” he said. “If those harms are not irreparable, then we submit there are no such harms.”

More than a dozen people attended the hearing.

Teton County resident Linda Williams called the ruling a “good decision.”

“This is just a very important issue, and people need to take notice,” Williams said. “It’s about equality.”

Max Krei, who attended the hearing with his pet butterfly, Mohawk, felt differently. Krei said his family has been in Wyoming for five generations.

“It’s heartbreaking and sickening to my stomach,” Krei said.

 

This story was posted on July 28, 2022.

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