Intervenors reiterate their right to defend criminal abortion ban

JACKSON — Two legislators and a nonprofit that want to see Wyoming’s abortion ban take effect are pressing to be allowed to intervene in a lawsuit against the ban.
In an Oct. 7 filing in Teton County District Court, attorneys Frederick Harrison and Denise Harle said the would-be intervenors have arguments to make and interests to protect that won’t be presented unless they are parties to the case.
Wyoming’s criminal abortion ban, which was to take effect July 27, has been paused while its legality is being decided.
Two women of childbearing age, two obstetric physicians and two pro-choice nonprofits have sued the state of Wyoming, Gov. Mark Gordon and Attorney General Bridget Hill. Teton County Sheriff Matt Carr and Jackson Chief of Police Michelle Weber also are named in the lawsuit.
The legal questions they filed July 25 are whether Wyoming’s criminal abortion ban violates their constitutional rights regarding property, privacy, equal protection, religion and access to health care.
Ninth Judicial District Court Judge Melissa Owens granted a preliminary injunction Aug. 10, protecting abortion access for the time being.
Not long after, a request to be added as parties to the case was filed by Right to Life Wyoming along with State Reps. Rachel Rodriguez-Williams, R-Cody, and Chip Neiman, R-Hulett, sponsors of the trigger bill that severely restricted abortion in the state if the U.S. Supreme Court struck down Roe v. Wade, which it did in June.
They pointed to their “significant, protectable interests” as maintaining their authority to make laws, protect the health of women and unborn children, and regulate the medical profession.
Special Assistant Attorney General Jay Jerde did not oppose the motion to intervene. He is representing the State of Wyoming, the governor and the attorney general in defense of the criminal ban.
But John Robinson and Marci Bramlet, attorneys for the individuals and organizations fighting the ban, argued that the proposed intervenors haven’t identified how the outcome of the case would “impair” their interests.
“The legislators may continue to make laws and RTLW may continue to advocate,” they argued in a Sept. 22 court filing. “Drastically unlike the plaintiffs, nothing in this action could prevent them from making their own choices related to abortion.”
Robinson and Bramlet argued that the legislators’ and nonprofit’s interests are already adequately represented by the Wyoming Attorney General’s Office.
The attorneys representing the legislators and Right to Life Wyoming said in their Oct. 7 filing, however, that the attorney general is not going to present the same arguments that they will.
For example, “the proposed intervenors plan to introduce evidence on the harms to women and unborn children when elective abortions are mistakenly viewed as ordinary health care,” the filing stated.
The individuals and organizations who filed the lawsuit to stop the criminal abortion ban have argued that Wyoming’s constitutional statute granting every “competent adult the right to make his or her own health care decisions” also grants the right to an abortion, since abortion is health care.
In her preliminary injunction ruling, Judge Owens found that the plaintiffs had demonstrated probable success in showing that the ban infringes on Wyomingites’ right to make their own health care decisions.
But the proposed intervenors said in their latest filing that this interpretation of that right of Wyomingites to make their own health care decisions was an “imagining of new rights.”
Jerde previously said in court that the statute was enacted to insulate Wyomingites from the Affordable Care Act.
“[The statute] does not create a never-before-recognized fundamental right to abortion that eclipses the Legislature’s authority to pass laws promoting life, health, and safety,” the proposed intervenors’ response said.
If anything, the statute bolsters the Legislature’s right to enact the criminal abortion ban, the proposed intervenors argued.
“Art. I, Sec. 38 expands the authority of the Legislature to pass laws fostering health and welfare,” their filing said. “It expressly provides that the Legislature ‘may determine reasonable and necessary restrictions on the rights granted under this section to protect the health and general welfare of the people.’ ... [S]o if anything, this provision bolsters the power of the Legislature to make life-promoting laws.”
The proposed intervenors argued that the plaintiffs “seek to nullify the legislators’ express and basic power to do that” and are usurping their legislative authority.
“If [the criminal abortion ban] is permanently enjoined, the legislators’ ability to limit the harms of abortion may be greatly impaired, despite Dobbs’ plain directive that the Legislature retains such authority,” the document said.
“This affront to the separation of powers at the heart of the Wyoming Constitution is the type of ‘direct, substantial and legally protectable’ interest intervention is meant to address,” the proposed intervenors argued.
RTLW also has a cognizable interest in defending the legislation since its advocacy was involved in adopting it, the filing said.
The individuals and organizations that sued to stop the ban have also opposed sending the case to the Wyoming Supreme Court, calling that effort on behalf of the defendants “premature.”
Jerde filed a motion Aug. 18 on behalf of Gov. Mark Gordon and Hill to send key legal questions to the Wyoming Supreme Court so the civil suit can be resolved “as quickly as possible.”
The plaintiffs argued that certifying the case on the single question — is abortion a right conferred in the Wyoming Constitution? — is too narrow a question.
Judge Owens stated in her preliminary injunction ruling that she found probable success on merits outside of this scope — namely, that the ban discriminates against women on the basis of sex and is unconstitutionally vague.
Next steps will be decided in a remote scheduling hearing Oct. 27 at 2:30 p.m., presided over by Owens.
 
This story was published on Oct. 21, 2022.