The Wyoming Attorney General’s Office will appeal a judge’s ruling that struck down the state’s two abortion bans, Gov. Mark Gordon said Tuesday.
The appeal will send the case to the Wyoming Supreme Court to wrestle with the question of whether the bans, which lawmakers passed in 2023, are indeed unconstitutional. District Court Judge Melissa Owens of Teton County ruled Monday that the laws violate a state constitutional amendment that protects individuals’ rights to make their own health care decisions.
Meantime, most abortions remain legal in Wyoming.
“Judge Owen’s ruling is frustrating, still this is just one of the steps in the judicial process,” Gordon, who appointed Owens to the bench in 2021, said in a written statement. “Regardless of her decision, it was clear there would be an appeal. I remain committed to defending the constitutionality of this law and the sanctity of life.”
Gordon said he would not offer additional comments on the matter since litigation is ongoing.
State legislators last year passed a law that banned most abortions, with exceptions for rape, incest and preserving the life of the mother. They also enacted a second ban that prohibited medication abortions. A group of women, health care providers and an aid group filed suit, asserting the laws were unconstitutional.
Owens put the bans on hold while the case proceeded through the court, blocking the state from shutting down abortion providers in Casper and Jackson. On Monday, she issued her long-awaited ruling, setting up a showdown at the Wyoming Supreme Court.
Constitutional interpretation
The ruling concluded that the bans violate a section of the Wyoming Constitution that voters added in 2012 amid rising conservative concern over Obamacare. The amendment enshrines the right of competent adults to make their own health care decisions.
The plaintiffs in the case argued the bans violated other parts of the constitution, but Owens did not address those challenges because she had already determined the laws violated the 2012 amendment. She ruled there was no ambiguity to the meaning of the amendment, agreeing with the plaintiffs that the drafters sought to grant all Wyoming adults the right to “make their own decisions about what health care services they receive from medical professionals to restore and maintain their health.”
The two sides in the case were at odds over whether abortion constituted a form of health care. In their attempt to defend the bans, state lawyers contended pregnancy did not fit under the definition of health because it is neither a disease nor a sickness, according to the ruling. But Owens concluded the concept of health care applies to medical services provided to people whether they are sick or well.
Owens went on to reject the argument that abortions don’t fall under the amendment’s purview.
“As the Plaintiffs argued, only a pregnant woman can make a decision to have an abortion,” she wrote. “No other person can make that decision for a competent pregnant woman. To adopt Defendants’ argument the Court would have to rewrite the Health Care Amendment.”
Later in the ruling, Owens concluded that the bans impeded the right to make health care decisions for an entire class of society — pregnant women.
“The Defendants have not established a compelling governmental interest to exclude pregnant women from fully realizing the protections afforded by the Wyoming Constitution during the entire term of their pregnancies, nor have the Defendants established that the Abortion Statutes accomplish their interest,” she wrote. “The Court concludes that the Abortion Statutes suspend a woman’s right to make her own health care decisions during the entire term of a pregnancy and are not reasonable or necessary to protect the health and general welfare of the people.”
Ruling criticized, cheered
Rep. Rachel Rodriguez-Williams, the Cody Republican who sponsored the broader of the two abortion bans, criticized Owens’ conclusions, calling her an “activist judge.”
“Her opinion goes beyond typical legal analysis and proclaims a nonexistent right to kill other humans solely because of their temporary location,” the lawmaker wrote in a Facebook post. “I will never give up in the fight to protect life. I pray that someday, we will all look back on this time with horror and regret. This is the slavery of our time.”
Rep. Chip Neiman (R-Hulett), who unsuccessfully sought with Rodriguez-Williams to directly intervene in the legal case in defense of the laws, said on Facebook that innocent lives had been abandoned by Wyoming’s court system.
“I am appalled by the decision to allow the taking of lives who cannot cry out or defend themselves in any way,” he wrote. “We should be doing everything we can to protect innocent lives as our constitution clearly spells out but, yet again, courts not legislatures are making laws.”
Democrats in the Legislature, meanwhile, expressed support for the decision “to protect the freedom and health of all Wyomingities.”
“The key finding in the opinion is that abortion care is health care, as that term would have been understood by the voters who adopted the amendment in 2012,” said Rep. Ken Chestek (D-Laramie), an emeritus law professor at the University of Wyoming.
“Making your own health care decisions means being able to get care without confusing, harmful mandates from the state that risk your health and even your future ability to raise a family,” added House Minority Floor Leader Mike Yin (D-Jackson) in a statement.
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