Abortion likely protected, judge finds

JACKSON — Abortion is sounding a lot like health care, according to a Teton County judge who halted the state’s ban against it.
 
In a 32-page temporary restraining order filed this week, Teton County District Court Judge Melissa Owens found that six plaintiffs made a “sufficient showing” that an abortion constitutes health care and demonstrated possible irreparable harm if Wyoming’s 2023 Life is a Human Right Act, which bans most abortions, goes into effect.
 
On March 22, Owens granted a temporary restraining order, maintaining abortion access while the legal challenge to the new ban is being decided in court. The written ruling explains why she halted the new law from being enforced.
 
Owens found that the plaintiffs made a “sufficient showing” that abortion is health care and thus is protected by Article 1, Section 38 of the Wyoming Constitution, which endows competent adults with the right to make their own health care decisions without “undue government infringement.”
 
The new law, Owens wrote, “endows embryos, previable fetuses, and viable fetuses with constitutional rights not previously recognized under Wyoming law that trump a woman’s constitutional right to make her own health care decisions.”
 
Passed during this year’s legislative session, the law declares that “abortion is not health care.”
 
Owens found that the Legislature was not within its authority to declare that abortion is not health care since constitutional interpretation is a power vested in the courts. Laws that “transgress the separation of powers,” in this case between the Legislature and the courts, are unconstitutional, she wrote.
 
Owens concluded that the two doctors suing the state, Giovannina Anthony and Rene Hinkle, both OB-GYNs, provided ample evidence that abortions are health care because abortions are “utilized by medical professionals to restore and maintain the health of their patients.” Even without their testimony, however, Owens said the phrases used in the ban, such as “prescription,” “clinically diagnosable,” “preserve the health,” “medical treatment,” “medicine” and so on, strongly suggest that this is a procedure that involves health care.
 
Special Assistant Attorney General Jay Jerde, who has been defending the ban, has argued that the word “abortion” never appears in the Wyoming Constitution; that it cannot be considered health care because it is the intentional killing of another person; and that the constitutional amendment guaranteeing the right to make one’s own health care decisions was adopted simply to counteract the Affordable Care Act by allowing patients to make direct payments for health care.
 
Jerde also stated that there has been no showing that abortions maintain or restore a woman’s health.
 
Owens disagreed.
 
“The showing is found within the Act itself,” Owens wrote, finding that the ban itself “acknowledges the medical necessity of abortions in the lives of Wyoming women.
 
She pointed to the fact that the law identifies scenarios such as to prevent the death of a pregnant woman as well as to treat ectopic pregnancies, fetal anomalies and cancer.
 
Owens also wrote that by Jerde stating that the Legislature is within its authority to regulate health care, the state appears to acknowledge that abortions are health care.
 
In stating that the Legislature was within its authority to constrain health care decisions, Jerde cited how marijuana is not a legal option in Wyoming. Owens found that analogy “misplaced” and “incongruous,” because if a pregnancy must be terminated there are no alternative procedures other than an abortion. In contrast, with marijuana, many alternative legal options are available.
 

 
Owens wrote that all six plaintiffs proved irreparable harm in different ways.
 
Kathleen Dow and Danielle Johnson both showed that the “right to make their own health care decisions will be denied for the entire duration of their pregnancy,” Owens wrote.
 
Both nonprofits seeking to ensure that abortion access remains legal, Chelsea’s Fund and Circle of Hope, proved that the ban will drain organizational finances “due to the expenses associated with securing out-of-state travel for clients needing abortions.”
 
Finally, both OB-GYN doctors, Anthony and Hinkle, also proved irreparable harm, Owens found, due to the potential for incarceration, loss of their medical licenses and, thus, loss of customers and livelihood. Under the Life is a Human Right Act, only the providers of abortions, and not pregnant women, would be subject to up to five years in prison, and/or a fine of up to $20,000 and loss of their licenses.
 
Two days before Gov. Mark Gordon allowed the bill to become law without his signature on March 17, the plaintiffs filed the suit and requested the temporary restraining order. Gordon is being sued as well as Attorney General Bridget Hill, Teton County Sheriff Matt Carr and Jackson Police Chief Michelle Weber.
 
The ban states that its interests are protecting maternal health, eliminating a gruesome medical procedure, protecting the integrity of the medical profession, mitigating fetal pain and preventing discrimination on the basis of race, sex or disability.
 
Owens found that none of these interests justify a prohibition of a woman’s right to make the decision to terminate her pregnancy.
 
“The Court emphasizes that the police power exercised by the Legislature regulating health care decisions must still be reasonable and necessary,” Owens wrote. “The magnitude of the burden the Act places on pregnant women, their bodies, their physical and emotional health, their well-being, their families, their careers, their right to make health care decisions, and their finances is not lost on the Court.”
 
The order will remain in effect until the case is decided or dissolved by the court, Owens wrote.
 
She also noted that she is working on her decision regarding whether four intervenors can become parties to the case and defend the ban.
 
Those proposed intervenors are state Rep. Rachel Rodriguez-Williams, R-Cody, who sponsored the ban; state Rep. Chip Neiman, R-Hulett; Right to Life of Wyoming; and Secretary of State Chuck Gray.
 
The group has stated in its request, filed April 6, to intervene that it plans to introduce evidence to show that abortions harm women.
 
Once she decides on that request, Owens said, she will schedule future hearings.
 
This story was published on April 20, 2023.