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Plaintiffs fighting to keep abortion legal rebuff Wyoming’s call to oust experts


Plaintiffs fighting to keep abortion legal rebuff Wyoming’s call to oust experts

Oct 02, 2023 | 8:48 am ET
By Madelyn Beck/WyoFile
The Teton County Courthouse. (Angus M. Thuermer, Jr./WyoFile)

The Teton County Courthouse. (Angus M. Thuermer, Jr./WyoFile)

Expert witnesses should be allowed in the case over Wyoming’s abortion bans because their statements bolster claims of unconstitutionality, plaintiffs challenging the laws argued in a recent filing. 

The plaintiffs — who include women, doctors, a clinic and an advocacy organization — pointed to findings the 9th District Court in Teton County has already made. 

For example, the state’s opposition to the plaintiffs’ expert witnesses echoes arguments it made against answering discovery questions. Judge Melissa Owens ordered the state to answer more than 20 of the plaintiffs’ questions anyway, excluding only four “requests for admission.” 

“The Court has already rejected this argument once and should do so again,” plaintiffs wrote. 

While the state disagrees, plaintiffs also argue their qualified experts meet all required criteria. That includes providing testimony to help the court understand evidence or determine facts, that the testimony is based on “sufficient facts or data” and that the testimony is a product of “reliable principles and methods.”

The plaintiffs’ experts include a practicing OB-GYN in Texas who conducts research, a professor who analyzes religious views on reproductive issues, a conservative Jewish rabbi and scholar, a prominent former Wyoming prosecutor and four of the plaintiffs.

All proposed experts are involved in the plaintiffs’ request for summary judgment in the case — or in other words, asking the judge to skip a trial and go straight to a decision.

Requests for summary judgment are made when a party argues there are no fact issues in a case, only legal ones. The state has not responded to plaintiffs’ lengthy request as of this story, but is expected to.

At the center of the case are two laws the Wyoming Legislature passed earlier this year. One is a near-total ban on abortion. The other bans medications used to induce abortions. Owens put both on hold earlier this year while the case makes its way through the courts.

Why have experts at all?

Experts demonstrate the real-world impacts of the abortion bans, plaintiffs state, including how those impacts make the bans unconstitutional in practice.

For example, while plaintiffs and the state disagree on what kinds of legal tests should be applied to determine this case — and what each side has to prove — all deal with the state’s interests.

“[A]ll of these tests require at minimum that the challenged statutes actually further a governmental interest,” the plaintiffs’ filing states. 

The plaintiffs allege the laws further no stated governmental interest, including claims that the laws are meant to protect the unborn and pregnant women. 

To back that allegation, plaintiffs utilize testimony like that of Dr. Ghazaleh Kinney Moayedi — the OB-GYN in Texas who has seen the effects of a similar abortion ban there, including women having to wait until they’re close enough to death to qualify for a legal abortion, even if a fetus has little chance of survival.

“All of Plaintiffs’ experts provide opinions on the myriad ways that the Abortion Ban and Medication Ban will unduly infringe on women’s right to make their own health care decisions by preventing women from obtaining medically necessary care,” the filing states. 

The belief that life starts at conception is also tied to theology, plaintiffs state, citing testimony from expert religion scholar Rebecca Peters. Experts discuss how one of the plaintiffs’ own beliefs as a conservative Jewish woman is at odds with the abortion bans, which plaintiffs contend means the bans’ unconstitutionally push a religious belief onto the rest of Wyoming.

The bans are also unconstitutional, plaintiffs wrote, because of their vague language. The ability of health professionals and legal experts to understand that language is key, the filings contend, which is why testimony from those kinds of individuals is necessary in this case. 

“Both the Abortion Ban and the Medication Ban regulate the conduct of physicians, and call on physicians to use their medical judgment to determine whether the exceptions to the bans apply,” the filing states. “However, these exceptions use a host of vague and ambiguous terms.”

The state argues some testimony involves opinions on “ultimate issues of law,” something deemed a no-no in many cases, according to the court in Specht v. Jensen. However, plaintiffs state their experts aren’t interpreting the laws, but how the bans may be used in practice.

The state had also questioned certain experts’ ability to discuss matters that the state said isn’t in their realm of expertise. For example, the state contended former prosecutor Michael Blonigen shouldn’t be able to discuss how the law could harm childhood victims of sexual abuse because he isn’t an expert on such victims.

In response, plaintiffs state Blonigen has strong expertise in that area, noting his more than 200 jury trials and work with the Child Advocacy Center. 

“As a prosecutor with this experience, he is well-versed in the difficulties minors have in reporting sexual crimes and the likelihood that victims of childhood sexual abuse will not be able to access the abortion care that the statute purports to allow,” the filing states. 

Judge Owens is expected to make a decision on the plaintiffs’ experts in the near future. Most abortion remains legal in Wyoming.