Judicial

Judge Owens issues preliminary injunction against Wyoming’s strong pro-life law

By Dave Andrusko

The temptation to conclude which way a judge will rule based on her/his questioning is strong but often wrong. In the case of Judge Melissa Owens, you were sure she would issue a temporary injunction that blocked enforcement of Wyoming’s law banning most abortions in the state. And you would be right.

Reporter Kate Ready, who has done yeoman work on the case, wrote following the judge’s decision:

Ninth District Judge Melissa Owens has granted a preliminary injunction against Wyoming’s abortion ban, protecting abortion access until the case is ultimately decided.

The Wyoming Supreme Court can overturn the decision, if the state appeals it, but the preliminary injunction will otherwise likely remain in effect until Owens’ Jackson court hears a trial on the merits of the case.

Regardless of the path the litigation takes, both parties agreed in court Tuesday that their arguments on whether the ban is constitutional will likely be heard by the Wyoming Supreme Court within the next year.

Based on the wording of her decision, it was an easy call.

“The award of a temporary injunction is an extraordinary remedy which will not be granted except upon a clear showing of probable success and possible irreparable injury to the plaintiff,” Owens wrote in her Wednesday decision. 

HB 92 states that an abortion “shall not be performed, except when necessary to preserve the woman from a serious risk of death or of substantial and irreversible physical impairment of a major bodily as explained by Carrie Haderlie for the Wyoming Tribune Eagle.

Tuesday’s  “hearing focused on whether denying access to abortions violates a fundamental right protected by Wyoming and U.S. constitutions,” Ready wrote.

“The question that will last long past this hearing today and end up in Cheyenne at some point is: Have plaintiffs asserted natural, fundamental rights?” attorney for the plaintiffs John Robinson said. “It’s really that simple.”

Not so, said Special Assistant Attorney General Jay Jerde. “The issue at the heart of this case is whether the Wyoming constitution confers a right to abortion,” Jerde said. “The answer to that is no, either implicitly or explicitly. Abortion is not a fundamental right, we know that from Dobbs,” the June 24th Supreme Court decision overturning Roe v. Wade and Casey.

Ready wrote that “A new constitutional argument on behalf of the plaintiffs’ presented Tuesday was that the abortion ban also violates their property rights.” John Robinson said “A woman’s uterus is her property. The state doesn’t say that it’s not.”

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