By Dave Andrusko
As reported last month, the Wyoming Supreme Court has declined, for now, to weigh in on a lawsuit that has temporarily halted the state’s ban on abortion except in cases of rape, incest, or physical risk to the mother’s life.
In a prior story, posted on August 10, we explained that Judge Melissa Owens had issued an injunction that blocked enforcement of Wyoming’s House Bill 92 banning most abortions in the state. Passed in 2022, 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,’” according to Carrie Haderlie writing for the Wyoming Tribune Eagle.
Subsequently, Judge 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.
But not now. 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.
Special Assistant Attorney General Jay Jerde said, “The issue at the heart of this case is whether the Wyoming constitution confers a right to abortion.” He added, “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.
Judge Owens would not allow three individual to help assist in defending Wyoming’s abortion, including two state legislators. The three have since appealed her decision.
In their request, “the parties provided three reasons why they should be allowed to intervene: The legislators have a protectable interest in enacting legislation that regulates the medical profession; they were themselves involved in sponsoring the bill; and they personally support enactment of their legislation,” according to the Casper Star-Tribune.
“In her November order, Owens weighed whether the interests of the three abortion opponents rose to the level of a ‘significantly protectable interest.’ She found that they did not.”