Abortion is legal again in Wyoming, just days after a near-total ban went into effect.
About 50 people, mostly women, filled Judge Melissa Owens’ Ninth District Court Wednesday afternoon.
After a nearly four-hour hearing, Owens issued a temporary restraining order on the recent ban, known as the Life is a Human Right act, saying lawmakers violated the separation of powers when they tried to define abortion as “not health care.”
“The state cannot legislate away a constitutional right,” Owens said in her decision.
It’s the second time a ban passed by the legislature has been held up in the courts, and the second time Owens has issued a temporary block.
One of the plaintiffs, local OB-GYN Giovannina Anthony, breathed a sigh of relief when the judge announced her decision. Anthony, who is one of the only providers in the state, said she had to cancel six appointments with abortion patients in the last few days, and now she can reschedule them.
“I’m so relieved to be able to continue providing our care,” Anthony said. “It is a great day for women’s rights at least temporarily in the state of Wyoming.”
Not everyone who attended the Wednesday hearing was in support of Owens’ decision.
David Bott, a local reverend at the Redeemer Lutheran Church, said he was “miserable” after the ban was put on hold.
“The unborn are in peril once again,” he said.
Persistent legal challenges
The GOP-led legislature passed the Life is a Human Right act in early March in order to address some of the questions about the state’s previous abortion ban, which was challenged in the courts last year.
The new law bans all abortions, except in instances of rape, incest or dire risks to the pregnant patient’s life. And providers can be charged with a felony for giving an abortion in Wyoming, meaning up to five years in prison, a fine of $20,000 or both.
Republican Governor Mark Gordon let the new ban pass without his signature on Friday, saying in a letter that he’d prefer to see a constitution amendment, rather than passing laws only to be challenged in the courts.
“I understand the Legislature’s effort to improve Wyoming’s pro-life legal framework and preemptively clarify some of these legal questions,” Gordon wrote. “However, I am nonetheless concerned that, in practice, this bill would instead complicate and delay the resolution of these central and foundational constitutional questions…”
A group of abortion supporters — including Anthony and local nurse Danielle Johnson — also filed a legal challenge late last week, requesting a temporary hold on the ban as the case makes it way through the court.
The situation mirrors what happened in summer of 2022, when Wyoming’s trigger ban went into effect and the same group sued to block it. Since then, that ban has been in legal limbo, until Sunday when it was voided by the new law.
The debate over health care
It’s written in the state constitution that Wyomingites have the right to make health care decisions. The key question in this case: does abortion qualify as health care?
The plaintiffs argued this is not for state lawmakers to decide.
“For 200 years, courts have interpreted constitutions, not legislatures,” said John Robinson, one of their lawyers.
At the end of initial arguments, Owens said she was “still hung up on abortion not being health care.”
“An abortion can only be performed by a licensed medical professional,” Owens said. “So what authority does the legislature have to declare that abortion is not healthcare when our laws only allow a licensed medical professional to administer one?”
The defense lawyer with the Wyoming Attorney General’s office, Jay Jerde, argued that lawmakers have the ability to decide what’s available and what’s not in terms of health care.
“The intentional killing of an unborn child can not be considered to be health care — it just can’t,” Jerde told the judge. “The discussion has to be held in terms of both pregnant women and the unborn child. They both have constitutional rights.”
The plaintiffs argued the law discriminates on the basis of sex and doesn’t offer equal protection to women. According to Robinson, women aren’t just “vessels” from the moment of conception until childbirth.
“They’re individuals,” Robinson said. “They’re citizens. They have inalienable rights, including life, liberty and the pursuit of happiness. These individuals don’t give up those rights from the moment of conception.”
Jerde, on the other hand, told the judge there’s no equal protection argument to be made in this case.
“When it comes to pregnancy and abortion, men and women are not similarly situated,” he said. “And that’s just the way it is.”
Public reaction to the block
Few people at Wednesday’s hearing vocally supported the abortion ban. Bott, with the local Lutheran church, said that he wasn’t surprised to be in the minority.
“I’m used to it,” he said. “I’m a God-fearing, bible-believing Christian, and Teton County is not very amenable to traditional Christianity.”
Midway through the hearing, he said he was praying for Owens to deny the plaintiffs.
Marti Halverson, who leads the advocacy group Wyoming Right to Life, also attended and said she was supportive of the ban.
A few local elected officials were present, including Jackson Town Councilor Jessica Sell Chambers and Teton County Board of Commissioners Vice Chair Natalia Macker.
Chambers said she teared up with relief when the decision came down, but she highlighted that the fight is far from over.
“I’m just putting my faith in the courts at this point to really get us an answer to this question that is forever looming, especially in our state,” Sell Chambers said.
Judge Owens said the block on the abortion ban is effective immediately, and it’ll hold until she takes further action in future hearings.
Gordon also signed another law last week which bans abortion pills. That law is slated to go into effect in July, when plaintiffs plan to request another emergency block.