Wyoming Supreme Court sends “trigger law” back to district judge as plaintiffs and the state spar over whether there is a right to abortion in state constitution

By Dave Andrusko

For now at least, the Wyoming Supreme Court has declined to weigh in on a lawsuit that has temporarily halted a ban on abortion except in cases of rape, incest, or physical risk to the mother’s life.

Ninth District Judge Melissa Owens asked the state’s highest court to respond to 12 questions regarding the constitutionality of House Bill 92. “Ten of the questions Owens certified to the state Supreme Court on Nov. 30 asked whether the ban violated provisions of the state constitution, among them a 2012 amendment guaranteeing adults the right to make their own health care decisions,” according to Mead Gruver of the Associated Press. “The case could yet go before the state Supreme Court, however, after an eventual decision in Owens’ court.”

Supreme Court Chief Justice Kate Fox, without elaboration, wrote in a one-page ruling that there’s not enough information in Owens’s “limited factual record” to answer all 12 legal questions she certified to the state Supreme Court.

Last March Gov. Mark Gordon signed an abortion “trigger” ban into law. Trigger laws are written so as to take effect should the Supreme Court overturn Roe which it did on June 24th.

It takes no great powers of analysis to conclude Judge Owens is more than ready to strike HB 92 down.

“Hours after the law took effect July 27, Owens [temporarily] suspended it, siding with the women and nonprofits by ruling that the ban was vague and appeared to violate the state constitution,” Gruver explained. “The ban would likely harm women with pregnancy complications and threaten doctors with prosecution if they tried to help with abortions, Owens wrote.”

In the follow up August 9th hearing “The issue of whether doctors and their pregnant patients face possible irreparable harm was not at issue in this hearing, Owens said, as that was established at the temporary restraining order hearing July 27,” according to Kate Ready. “Instead, Tuesday’s hearing focused on whether denying access to abortions violates a fundamental right protected by Wyoming and U.S. constitutions.”

“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?” John Robinson, attorney for the plaintiffs, 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.

Jerde denied that the six plaintiffs had proven fundamental rights were infringed and thus argued that the plaintiffs had the burden of proof, Ready wrote.

“The prosecution is trying to shift the burden to the state,” Jerde said. “The burden is they have to show any right is a fundamental right. To do that, they need to show that right is deeply rooted in the history of this country.”

The compelling need being met by this ban, Jerde stated, was protecting fetal life.

“The federal Supreme Court has said protecting fetal life and protecting pregnant women are legitimate objectives,” Jerde said. “The statute does that.”