Judge suspends ban on abortion pills

Judge Melissa Owens of the 9th Judicial Court has placed a temporary restraining order on the new law prohibiting the use of abortion pills in Wyoming. The injunction will remain in place while the plaintiffs and state continue to argue the constitutionality of the law, which was passed earlier this year by the Wyoming Legislature.

Due to this decision, abortion remains legal in Wyoming for now.

Earlier this year, Owens placed a temporary restraining order on the “Life is a Human Right Act” of 2023, which itself invalidated the “trigger ban” from the year before. It also bans abortion in most cases, while providing additional definitions for abortion itself and the exceptions deemed appropriate by the legislature, such as in the case of rape or incest or an unviable fetus.

The plaintiffs in the chemical abortion lawsuit are two nonprofits, both abortion clinics, and four women, including two obstetricians, who have sued to stop the state from preventing access to abortion pills. The same plaintiffs won an injunction on the original trigger ban, which passed in 2022 in the wake of the U.S. Supreme Court overturning Roe vs. Wade.

With two laws still in play, and a restraining order already in place for the “Life is a Human Right Act”, Owens considered arguments on the need to call a temporary halt to the ban on chemical abortions while the overall matter is decided.

The availability of chemical abortions – as opposed to surgical – is a significant question in Wyoming. During the hearing, it was stated that all but one abortion since 2019 has been performed through chemical means.

Right to Healthcare

The language of SF-109 makes it unlawful to prescribe, dispense, distribute, sell or use any drug for the purpose of performing an abortion.

It excludes contraceptive agents used before conception or before pregnancy can be confirmed, miscarriage treatments or treatment “necessary to preserve the woman from an imminent peril that substantially endangers her life or health” or if the pregnancy is the result of incest. Violations would be considered a misdemeanor.

Much of the plaintiffs’ argument against this law rests on Section 38 of the Wyoming Constitution, which passed in 2012 with a 72% approval and was originally intended to protect state citizens from federal overreach once the Affordable Healthcare Act went into effect.

Section 38 provides for the right of healthcare access for citizens of this state. It says that competent adults shall have the right to make their own healthcare decisions (or guardians for non-competent persons) and “the legislature may determine reasonable and necessary restrictions on the rights granted under this section to protect the health and general welfare of the people” or accomplish other purposes set forth in the Wyoming Constitution.

Does abortion count as healthcare? The answer to this question will be vital in determining whether a ban on chemical abortions is constitutional.

Constitutionality

Calling the new law “constitutionally infirm”, lawyers for the plaintiffs asked the court to “maintain the status quo” of 45 years while the case unfolds.

If abortion is healthcare, they argued – claiming that it is “under any definition used by this court” – then it is a fundamental right, constitutionally protected, and the state may not unduly infringe on this right other than for a “compelling need, narrowly drawn”.

Section 38 says the state shall act to protect healthcare rights from “undue governmental infringement”. The government may therefore only regulate healthcare to the extent reasonable and necessary, Owens heard, and this should not extend to the right to make healthcare decisions.

Plantiffs also argued that surgical abortions are more invasive. Taken by itself, therefore, the ban on chemical abortions simply rules out the safer, more effective and less costly method of abortion.

That, lawyers said, is like saying, “You must have open heart surgery when a stent will do”.

The motive of a healthcare decision should not be relevant to the definition of healthcare, plaintiffs argue. Nobody would question why a person wants cancer treatment, for example – motive, lawyers said, is simply irrelevant.

The plaintiffs also touched on the idea that an abortion is not solely a healthcare decision affecting the patient and also necessarily impacts the unborn child.

There are a multitude of healthcare decisions we make that affect others, lawyers argued, such as vasectomy, hysterectomy or refraining from cancer treatment. Decisions are also made by surrogates or guardians for minors or those judged incompetent to decide for themselves.

“These are all healthcare decisions for another person,” lawyers said, and abortion is no different.

A ban on chemical abortions also takes away a physician’s ability to provide a standard of care for patients in imminent peril or while suicidal, lawyers argued, by causing unnecessary additional harm while the physician waits to decide if the peril is real enough to count as an exception to the law.

Irreparable harm from the law going into effect, therefore, is, “not just possible, but certain”.

Examining the Case

Lawyers for the state concentrated on only small portions of their case and technicalities for the purpose of this hearing and did not outline their full argument.

For example, it was pointed out that Section 38 was never intended to create a right to any specific healthcare. Rather, it was intended to create a means for Wyoming citizens to make decisions about available healthcare without the federal government interfering.

Abortion is also not about a woman making her own decisions, lawyers argued, because it’s not just affecting her – it’s not just for herself. The abortion is going to kill her unborn child.

If court finds abortion is healthcare, therefore, it also impacts the unborn baby. “It’s not just her own decision – it’s this decision that has collateral consequences to another person,” lawyers said.

In questioning lawyers for both the plaintiffs and the state, Owens repeatedly circled back to a number of technicalities within the chemical abortion ban and the “Life is a Human Right Act”, sometimes involving perceived conflicts between the two. Should they be considered together, she wondered?

For example, Owens asked for clarification on why the state keeps saying abortion isn’t healthcare when, to create this law, the legislature relied on being able to decide what is reasonable and necessary with regards to the restrictions needed to protect the health and general welfare of the people.

It’s hard for the court to understand, she said, how some parts of Section 38 apply to laws restricting abortion while others don’t. “That is still the answer I’ve been looking for,” she said.

“…The court continues to struggle with that portion of the law”.

Lawyers for the state explained that this case involves following a path, the first step of which is: is abortion healthcare? If not, it falls outside Section 38; If so, the state will have to make different arguments because the case has gone down a different branch of the path.

Lawyers also noted that these questions are more confusing at this stage of proceedings because the hearing was focused on certain parts of the picture, not the whole thing.

As the hearing ended, Owens judged the plaintiffs had shown “probable success” on the merits of their case, and that at least some of the plaintiffs will suffer possible irreparable injury if the law is allowed to become effective. A temporary injunction was placed on the law, preventing it from coming into effect on July 1.