Lawyers fighting abortion ban seek to limit who participates

CASPER — Wyoming women and health care providers are asking a Teton County judge to block state lawmakers and an anti-abortion group from joining an ongoing lawsuit over Wyoming’s abortion ban.

Right to Life Wyoming and lawmakers Rep. Rachel Rodriguez-Williams, R-Cody, and Rep. Chip Neiman, R-Hulett, filed a motion last month asking to join the lawsuit as intervenors.

If accepted, they would plan to make additional arguments about abortion as a procedure and the legislative process.

While an attorney representing the state said he isn’t against that group intervening, he would ask that they keep their arguments legal since the lawsuit is mainly concerned with whether or not the abortion ban is constitutional or not.

The ban is on pause while the case is active, meaning abortion remains legal in Wyoming for the time being.

“Facts or evidence are not necessary to decide the merits of the issues,” the response filed by Special Assistant Attorney General Jay Jerde states.

In a response filed Thursday, attorneys representing the plaintiffs in the lawsuit said they don’t believe the intervenors have standing to join.

The state, by defending the ban, is already representing their biggest interest in the case, attorneys said.

The lawmakers requesting to intervene also said that the case is infringing on their right and ability to make laws that will be enforced.

Plaintiffs disagreed, saying that courts “routinely” rule that lawmakers don’t have standing in cases like these simply because they involve laws they wrote.

If Judge Melissa Owens were to decide that Rodriguez-Williams and Neiman could intervene on those grounds, plaintiffs argued, then any lawmaker “would have the right to participate in every case involving a constitutional challenge to a state statute.”

Wyoming’s constitution has a rare and explicit protection of health care rights, added by a popular vote in 2012 in response to concerns over Obamacare. That amendment allows lawmakers to pass only “reasonable and necessary” exceptions to that — language that has become a major focus of the abortion ban lawsuit.

“Courts are frequently called upon to determine whether legislative acts are ‘reasonable and necessary,’” the plaintiffs’ response says.

As for Right to Life, the plaintiffs argued that any outcome of the lawsuit would not interfere with the group’s mission to advocate for life and alternatives to abortion. The anti-abortion group said when it asked to intervene that it would bring arguments related to “the harms to women and unborn children” posed by abortion.

The plaintiffs’ response also cites several other abortion-related cases from outside Wyoming in which state lawmakers and anti-abortion groups were not allowed to intervene.

Right to Life and the lawmakers are represented by attorneys with Alliance Defending Freedom, a prominent conservative Christian legal network involved in similar lawsuits in several other states. The organization has helped draft anti-abortion laws across the country, including the one that sparked the case that eventually overturned Roe v. Wade.

Earlier this week, other attorneys from ADF filed a separate lawsuit on behalf of the Wyoming Rescue Mission following complaints that the organization discriminated against a job applicant whom it did not hire after learning she was not Christian.

Even if the judge decides not to allow this group to intervene in the abortion case, they may be invited to join the lawsuit on an amicus curiae, or “friend of the court” basis. That would still allow them to add arguments, but they could not call for a hearing.

Plaintiffs asked the court to limit the scope of the intervenors’ participation in the case, if the judge does allow them to intervene, “protect against any intervention becoming a mere ‘reprise’” of political arguments over the ban.

Owens, the judge presiding over the case, will now have to make that call.

She will also have to rule on a request from the state to send certain questions in the case up to the Wyoming Supreme Court before the lawsuit is resolved, a move which the plaintiffs have also opposed.

A scheduling meeting is set for Oct. 27, which will likely lay out a timeline for the rest of the case.