Wyoming Special Assistant Attorney General Jay Jerde is representing the defendants in the suit over Wyoming’s abortion bans. Here, he listens to oral arguments from plaintiff attorneys in Ninth District Court on Aug. 9, 2022 in Jackson. (Bradly J. Boner/WyoFile/Jackson Hole News&Guide/pool)

CHEYENNE, Wyo. — Medication abortions will become illegal in Wyoming on July 1 unless a group suing the state convinces the judge to block the ban in court. Their request for a temporary restraining order against the law met its first challenge Thursday when defendants filed a rebuttal to the plaintiffs’ argument. 

The defendants, which include Wyoming’s governor and attorney general, argued in Thursday’s filing that the plaintiffs’ failed to provide adequate legal analysis and that their testimony isn’t legally relevant. 

The rebuttal also reasserts a central argument from the ongoing defense of the state’s near total abortion ban — that abortion isn’t health care and therefore isn’t subject to Article 1, Section 38 of the Wyoming Constitution, which states, “Each competent adult shall have the right to make his or her own health care decisions.” 

Ninth District Court Judge Melissa Owens, who is presiding over the case, has already made her skepticism of that reasoning clear. “The Court cannot find that a procedure that requires medical expertise, the prescription of medications and drugs, the use of reasonable medical judgment, which must also include medical opinions on the health of the pregnant woman and the fetus, is not a health care procedure,” she wrote in explaining her decision to halt the near total ban.

Wyoming is the first state to pass a ban on medication abortions. While the ban doesn’t specify names of medications, it states “it shall be unlawful to prescribe, dispense, distribute, sell or use any drug for the purpose of procuring or performing an abortion on any person.”

The state’s other, near-total ban is already under such a restraining order, which went into effect in March. 

The history

Similar to the near-total ban, the medication ban would strip those seeking abortions of their constitutional right to make a health care decision, the plaintiffs argue, citing the Wyoming Constitution.

Judge Owens should take the history and intent behind Article 1, Section 38 into consideration if the language is ambiguous, the defense states, or may do so even if she finds the meaning of the law to be clear. That intent, the filing states, was to contradict federal mandates in the Affordable Care Act — better known as Obamacare.

The lawmakers and voters made it clear that they were rebuking federal lawmakers and the ACA with the passage of their constitutional amendment in 2012, defendants argue.

To back its claim that voters understood this intent the defendants cited a Secretary of State voter’s guide, a statement by a Constitutional expert and language in newspapers.

The language on the ballot doesn’t mention the federal government or the ACA, though. As the state notes in its filing, the language before voters was:

“The adoption of this amendment will provide that the right to make health care decisions is reserved to the citizens of the state of Wyoming. It permits any person to pay and any health care provider to receive direct payment for services. The amendment permits the legislature to place reasonable and necessary restrictions on health care consistent with the purposes of the Wyoming Constitution and provides that this state shall act to preserve these rights from undue governmental infringement.”

Health care?

Even if the court finds that abortion is health care, the defendants argue, there are still several reasons not to issue a temporary restraining order. Section 38, for example, doesn’t give patients the right to access certain kinds of health care, they state. 

“As consumers of medical services, patients have no direct role in determining what medical services legally are available,” the filing states.

Instead, defendants argue the Legislature has the constitutional right to determine “reasonable and necessary restrictions” to individuals’ health care decisions. 

“[T]o say otherwise would be to say that the Wyoming Legislature and the voters intended to delegate a significant aspect of the Legislature’s police power to competent adult Wyoming citizens,” the filing states. 

If abortion is considered health care, defendants also argue that a woman’s decision to abort a pregnancy is not solely her own, but also one that potentially affects a viable fetus. Defendants cite provisions under the state’s abortion bans to defend this view, including legal protections that would be provided to the unborn if these bans were to go into effect. 

The state’s arguments went on to include: Plaintiffs wouldn’t face direct or imminent injuries if the law were to go into effect, the Legislature’s creation of the law was necessary and reasonable, and that the law wouldn’t restrict rights in all circumstances.

To read the state’s entire reply, which includes many other arguments, go here. To read plaintiffs’ memo in support of a temporary restraining order, go here.

This article was originally published by WyoFile and is republished here with permission. WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.