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Judge blocks abortion ban citing separation of powers


Judge blocks abortion ban citing separation of powers

Mar 22, 2023 | 9:05 am ET
By Angus M. Thuermer Jr./WyoFile
News From The States

A district court judge issued a temporary order Wednesday blocking implementation of a new abortion-ban law, finding that a coalition of women and healthcare providers were likely to prevail in their challenge and that they risked irreparable harm if the law remained in place.

Ninth District Judge Melissa Owens ruled from the bench shortly after 4 p.m. and said the order would be effective immediately. She made her ruling after about three hours of arguments witnessed by a standing-room-only crowd of about 50 women and a handful of men.

“Wyoming citizens voted into law that they have a fundamental right to make their own healthcare decision,” Owens said, citing a 2012 constitutional amendment.

“The Legislature declaring that abortion is not healthcare takes away from the duty of this court,” to decide constitutional questions, she said. “That violates the separation of powers.”

Implementation and enforcement of House Bill 152 – Life is a Human Right Act, which went into effect Sunday, hung in the balance. It banned abortions in most cases and called for the prosecution of doctors who violated it.

The judge will set a schedule for the parties to argue whether she should impose a more permanent injunction and when the merits of the issue will be tried.

Two women, two doctors and two abortion-rights nonprofits sued the state and various officials claiming the new law violated the Wyoming Constitution and discriminated against women. The abortion-ban law breached the separation of church and state by imposing a Christian ethic on women of other religions and is too vague, they argued.

The state’s lawyer told Owens the Legislature was within its powers to craft the abortion ban and that the plaintiffs failed to prove that the temporary ban was necessary. The plaintiffs had to show they would likely win the case and were also at risk of harm, Wyoming Special Assistant Attorney General Jay Jerde said.

“They have shown neither,” he said. His arguments did not carry the day.

Plaintiffs’ attorney Marci Bramlet highlighted the discriminatory aspect of the abortion-ban law saying that under it “only [men] can receive complete competent health care.” The law also imposes a “distinctly Christian and Catholic view … that life begins at conception,” she said.

The plaintiffs, Bramlet said, established that the risk of irreparable injury had actually occurred.

State attorney Jerde summed up the starkly opposing views. “I disagree with just about everything she said,” he told the judge after Bramlet spoke.

Among his points were that potential injury was speculative and that religious views opposing abortion were not related to the law itself. That the law aligns with some religious beliefs is “entirely coincidental,” he said.

The law doesn’t discriminate because discrimination has to be among similarly situated segments of the population, Jerde also argued.

“Men and women are not similarly situated,” he said. “That’s just the way it is.”

The constitutional provision allowing Wyomingites to make their own healthcare choices is subject to reasonable and necessary restrictions, he said. “The Legislature gets to decide what’s available and what’s not,” he said.

Much more needs to be argued and decided on in the case brought against lawmakers’ second attempt to criminalize abortions. Owens last year blocked a similar law from taking effect and the Legislature replaced it with a 2023 version.

Owens began probing one aspect of the conflict by quizzing Jerde on whether abortion is healthcare, a proposition the state opposes. Under state law, “an abortion can only be performed by a licensed medical professional,” Owens pointed out.

“When they say it’s the intentional killing of an unborn child, that cannot be considered healthcare,” Jerde said. The new law states that life begins at conception, therefore the mother and fetus, “they both have constitutional rights,” Jerde said.

WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.