Abortion case certified to the state Supreme Court while intervenors denied

JACKSON – The legal challenge to Wyoming’s abortion ban is headed to the Wyoming Supreme Court after a Wednesday order from Teton County District Court Judge Melissa Owens to certify questions of law to the state’s highest court.
The same day, Judge Owens also denied a request from three intervenors seeking to join the case and defend Wyoming’s abortion ban.
In her order, Owens listed questions to be sent to the state Supreme Court. They include whether House Bill 92 is unconstitutionally vague, and whether it violates other sections of the state constitution, such as Wyomingites’ right to privacy, as well as residents’ rights to equality, to make their own health care decisions and to private property.
The Wyoming Supreme Court has 30 days to decide whether it will accept the case.
“This court does not find any Wyoming Supreme Court precedent addressing the questions of law to be answered,” Owens said in the five-page certification order.
Reps. Rachel Rodriguez-Williams, R-Cody, and Chip Neiman, R-Hulett, sponsored the bill, signed into law in March, which triggered a ban on most abortions when the U.S. Supreme Court struck down Roe v. Wade in June. There are narrow exceptions for rape, incest or physical risk to the mother’s life.
The two lawmakers were denied the ability to intervene in the case, along with the nonprofit Right to Life Wyoming, after Owens heard arguments from the proposed intervenors during a Nov. 21 hearing in Jackson.
In her ruling Wednesday, Owens weighed whether the interests of the three abortion opponents rose to the level of a “significantly protectable interest.” 
She found that they did not.

“A challenge to a particular piece of legislation on the basis of its constitutionality is not an infringement on the legislators’ ability to enact laws,” Owens wrote in her 13-page ruling.
The intervenors provided three reasons why they should be allowed to intervene in their request filed Aug. 16. — that the legislators have a protectable interest in enacting legislation that regulates the medical profession, that the legislators were themselves involved in sponsoring the bill, and finally, that the legislators personally support human life and the enactment of their legislation.
“There are a number of cases that have denied an individual legislator’s motion to intervene, finding that their support for a piece of legislation does not rise to the level of a significant protectable interest,” Owens wrote.
John Robinson, one of the attorneys representing the six plaintiffs in the case, declined to comment on the ruling.
Special Assistant Attorney General Jay Jerde could not be reached by press time.
The plaintiffs include two women of childbearing age, two obstetric physicians and two abortion access nonprofits. They are suing the state, Gov. Mark Gordon, Attorney General Bridget Hill, Teton County Sheriff Matt Carr and Jackson Chief of Police Michelle Weber. Jerde is representing the state defendants.
In the Nov. 21 hearing as well as in written filings, the intervenors relied on federal environmental cases to support their right to intervene.
Denise Harle, an attorney for the intervenors, pointed to a case in which an environmental advocate was allowed to intervene to defend an Endangered Species Act listing for the spotted owl as an example of courts allowing advocates to intervene.
Ultimately, Owens found that while the intervenors “unquestionably” have a personal stake in the litigation, this is a generalized interest held by many, including the entire state Legislature and “likely by any Wyoming citizen.”
“The court finds that interests founded on the legislators’ personal convictions are not different from any Wyoming citizen’s interest in seeing legislation enacted that promotes the health, welfare and safety of Wyoming’s citizens,” Owens said in her ruling. “Right to Life’s interest in seeing HB 92 enacted is similar to that of any other member of the public.”
Owens also stated in the ruling that regardless of the outcome of this case, the legislators and nonprofit are free to continue their work and that permitting them to intervene would “unduly delay the adjudication of the rights of the parties.”
In her ruling, Owens emphasized that the proposed intervenors, including the state lawmakers responsible for sponsoring the abortion ban, also failed to prove that they were not already adequately represented by Jerde.
“A simple difference between a party and an intervenor’s motivation in the litigation is not enough to show inadequacy of representation,” Owens wrote. “The court finds that the applicants and the state defendants have the same objective in this case ... to ensure that HB 92 is found constitutional.”
The proposed intervenors argued in their filing that Jerde neglected to present rebuttal evidence to affidavits submitted by the plaintiffs. They also took issue with the state’s position that this case should be certified to the Wyoming Supreme Court without an evidentiary hearing.
In the Nov. 21 hearing, Jerde did not oppose their motion to intervene, but disagreed that an evidentiary hearing is inappropriate.
“However, counsel for the state defendants affirmatively asserted that they would fully participate in an evidentiary hearing if one is held,” Owens found.
Dave Cortman, senior counsel with Alliance Defending Freedom — the group representing the proposed intervenors — released the following statement after Owens’ ruling:
“The people of Wyoming, through their elected representatives, have made clear that they want to protect life. Wyoming deserves the long-awaited opportunity to affirm that life is a human right. We are hopeful that the state will prevail so it can protect the most vulnerable among us and ensure that women and families facing unplanned pregnancies have real support.”
 
This story was published on Dec. 1, 2022.