An attorney representing the state of Wyoming is urging a state district court to disregard a slate of experts trying to prove that the state’s two new abortion bans are unconstitutional.
Jay Jerde, special assistant attorney general for Wyoming, has filed an argument asking Teton County District Court Judge Melissa Owens to ignore a series of experts a pro-choice coalition is paying to opine against Wyoming’s abortion bans.
There’s no need for the experts because Owens should merely be evaluating the bans in light of the Wyoming Constitution, not entertaining a display on how they affect the abortion proponents now suing the state, Jerde argued.
Both bans, one on marketing any drugs to induce abortions and one on nearly all abortions, are not in effect now because Owens has blocked them from being enforced during the lawsuit challenging them.
“None of the issues before this Court in this case present a fact issue that requires this Court to rely on help from expert testimony,” wrote Jerde in his filing. “To address the facial constitutional claims in this case, this Court must interpret the Life Act, the chemical abortion statutes, and various provisions in the Wyoming Constitution.”
If Owens finds the laws unambiguous, she can see if they fit plainly with the state Constitution. But if she finds them ambiguous, she can look at the circumstances and legislative history that brought them into existence as well, says the filing.
Jerde has argued throughout this case that the issue is as simple as a constitutional comparison, whereas the pro-choice plaintiffs have claimed that their challenge includes both a challenge against the laws as altogether unconstitutional and more targeted challenges calling the laws unconstitutional in certain situations.
The Bigger They Are, The Harder They Fall
It may be harder for the plaintiffs to win a “facial” challenge against the laws altogether, because then they’d have to prove that there’s no set of circumstances under which the abortion bans could be constitutional.
However, if they did win such a challenge, the state would have to discard the law altogether.
With the greater challenge comes a larger potential victory for the plaintiffs.
Going To Talk About Religion And Medical Terms
The pro-choice plaintiffs on Aug. 2 asked Owens to let four reported experts opine against the bans. They include:
- OB-GYN Dr. Ghazaleh Moayedi, who plans to criticize the abortion ban’s alleged misalignment with medical terminology.
- Rabbi Danya Ruttenberg, who plans to speak on how Judaism relates to the abortion issue, since a Jewish plaintiff is asserting that her faith requires her to consider abortion. This claim is contested within the faith.
- Dr. Rebecca Peters, a professor of religious studies at Elon University, who plans to testify on the pro-life movement’s connection with Christianity. This comes after the plaintiffs claimed the abortion bans were religious in nature.
- Michael A. Blonigen, a Wyoming attorney and longtime prosecutor, who plans to tell the court that the new bans would be difficult for prosecutors to apply.
The plaintiffs are paying all their expert witnesses $200 per hour for consultation and $1,000 per day of travel or testimony, according to the filing, except for Blonigen, who is charging $150 an hour for his work.
Jerde characterized these offerings as people opining improperly on questions of law and questions for the court.
He said the plaintiffs’ own demands in the case betray their approach as a full constitutional challenge because they haven’t been asking for mere relief for one plaintiff, but for the court to block the bans statewide.
Owens has done that.
Incomplete Picture
Wyoming’s attorney went on, finding more specific alleged faults with the experts’ proposed testimonies.
For example, he drew attention to Dr. Moayedi’s claim that chemical abortion is safe, and so the chemical abortion statute “denies the people of Wyoming access to lifesaving, quality health care.”
The opinion is factually incorrect, argued Jerde, noting that that statute gives an exception allowing chemical abortions to save a woman’s life or health.
He also said that Moayedi is unqualified to give another opinion she’s offering on whether the bans violate four pillars of medical ethics.
He also critiqued Rabbi Ruttenberg’s proposed testimony, saying she fails to acknowledge the bans’ exceptions as well.
Owens has not yet ruled on whether to permit the experts, the case file indicates.
Who, Exactly?
The women and organizations suing Wyoming over its abortion bans include Dr. Rene Hinkle, OB/GYN; Dr. Anthony Giovannina, an abortion provider; Kathleen Dow and Danielle Johnson, who are both women in their child-bearing years; Chelsea’s Fund, which helps women pay for abortions; and Wellspring Health Access, which is an abortion clinic in Casper.
Clair McFarland can be reached at clair@cowboystatedaily.com.
