Major Wyoming abortion decisions loom
December 7, 2023
The last month of the year will be one to watch for those who are both for and against abortion access in Wyoming.
The week of Dec. 11 will feature two significant court hearings and the closing of a Jackson clinic — leaving only one physical facility to provide elective abortions in the state.
“It’s going to be a tense week,” said Right to Life Wyoming president Marti Halverson, referring to the hearings.
“There’s a lot hanging in the balance, obviously,” echoed Sharon Breitweiser, executive director of Pro-Choice Wyoming. “Right now, the lawsuits are the critical component to everything.”
Between now and then, a Jackson judge is also expected to decide whether expert witnesses and an amicus brief should be allowed in the suit challenging the state bans, which the Legislature passed earlier this year. One restricts most abortions while the other targets medication abortions. Both are on hold while the courts weigh the matter.
The first big hearing next month concerns whether proposed intervenors will be allowed to join the suit challenging Wyoming’s abortion bans.
That group includes Reps. Rachel Rodriguez-Williams (R-Cody), Chip Neiman (R-Hulett) and Right to Life of Wyoming. Rodriguez-Williams sponsored and Neiman co-sponsored the near-total ban, while both co-sponsored the medication ban. Neiman is also the House majority floor leader.
The 9th District Court in Teton County ruled in June that they — along with Secretary of State Chuck Gray — were not allowed to join the case. Later, the two lawmakers and RTLW appealed that decision to the Wyoming Supreme Court.
District Judge Melissa Owens denied their request on the grounds that their goal was the same as the attorney general — who’s already involved in the case — and that they didn’t have direct, substantial, protectable interests. The aspiring intervenors disagree and have stated that their interests aren’t being adequately defended.
“We’re hopeful, of course,” Halverson said of the hearing. “But we have no idea how that’s going to play out.”
Oral arguments have been set at 9 a.m. Dec. 12 before the Wyoming Supreme Court and will be broadcasted live online.
Then, across the state in Jackson, arguably the month’s most important hearing regarding abortion in Wyoming is scheduled for 1 p.m. Dec. 14.
That’s when Judge Owens will hear arguments about why she should issue a summary judgment siding with either those challenging the state abortion bans or those defending the bans.
Both sides of the case requested a summary judgment, arguing Owens should skip a costly trial because there are no “fact issues” in the case, only legal ones.
Plaintiffs in the case — women, health care providers and an aid group — argue Owens should side with their case, finding the bans unconstitutional in several ways and permanently bar the state from enforcing either.
Defendants — including the state, governor, attorney general, Teton County sheriff and Jackson’s chief of police — argue the exact opposite, stating that the bans are constitutional and should be allowed to go into effect.
While she could rule Dec. 14, Owens doesn’t have to make a decision that day and could deny both motions for summary judgment, sending the case to trial. That’s currently set for April.
Regardless of the outcome, the case is expected to be appealed to the Wyoming Supreme Court.
The day after the big hearing at the Teton County Courthouse, only a 15-minute walk away, the Women’s Health & Family Care clinic is slated to close its doors. It’s one of only two clinics offering elective abortions in Wyoming.
The reason is solely financial, according to those working there.
The four doctors are expected to remain in the Jackson area, and two are slated to start working at St. John’s Family Medicine. However, the hospital says it will decide whether to allow them to perform elective abortions at its facilities at a later date.
In the meantime, that will leave Wellspring Health Access in Casper as the sole brick-and-mortar clinic offering abortions in the state. Others can still access abortion-inducing medications via Just the Pill or Aid Access.
Other things to watch
There are other legal arguments afoot that could affect abortion in Wyoming.
Judge Owens has yet to decide whether she’ll allow a proposed amicus brief into the abortion ban suit. That brief was filed by active and retired health care providers, including former state lawmaker Timothy Hallinan, writing in support of the abortion bans.
There is also an ongoing disagreement over whether expert witnesses should be allowed in the abortion ban case. The state has argued they shouldn’t be allowed, but plaintiffs strongly disagree.
On the national level, all eyes are on the U.S. Supreme Court, which has yet to decide whether it’ll take up a case regarding mifepristone — one of two medications regularly taken to induce abortion.
Lower courts found that the U.S. Food and Drug Administration inappropriately approved and/or expanded access to the medication, though Supreme Court justices put a hold on specific restrictions for the drug as the case moves forward.
Others have noted that another medication used to induce abortions — misoprostol — can be used alone, but can cause more pain and bleeding without accompanying mifepristone.
In February, Wyoming signed onto a Mississippi-led amicus brief opposing the FDA’s expansion of mifepristone access through telehealth and sent by mail.
“We’ve always said that mifepristone was hastily approved by the FDA,” said Halverson. “And the reason they were so able to approve it was they had to declare pregnancy an illness and mifepristone the cure.”
If the nation’s highest court takes on the case, oral arguments could happen next year.
This all sets the stage for the Wyoming Legislature’s budget session, which starts Feb. 12. While the session is likely focused on monetary matters, bills affecting abortion could always come forward, according to Breitweiser.
“We’ve seen this year, unfortunately, how willing a vast majority of the legislators are to jump on board and support these [abortion] restrictions,” she said.
Halverson doesn’t have anything on her radar yet. “I’m not tracking any pro-life bills” this session, she said.
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