Wyoming’s governor is arguing in court this week that a judge he appointed three years ago wrongfully applied the law when she struck down the state’s abortion bans and deemed the procedure “health care."
Wyoming Attorney General Special Assistant Jay Jerde filed a 102-page argument with the state’s Supreme Court on Monday, urging the high court to reverse a November order declaring Wyoming’s abortion bans unconstitutional.
Teton County District Court Judge Melissa Owens misapplied the Wyoming Constitution, used abortion friendly doctors’ testimony in her decision that should have been rooted in legislative language and history, and tried to resurrect Roe vs. Wade to foist her own preferred results into state law, Jerde argued in his filing.
Jerde’s filing is on behalf of Wyoming Gov. Mark Gordon, who appointed Owens in late 2021, as well as Attorney General Bridget Hill. The court filing asks the Wyoming Supreme Court to reverse Owens’ order and dismiss a pro-choice coalition’s challenge against the bans.
Because Of Obamacare
The controversy surrounds two 2023 abortion bans, the Life is a Human Right Act (or “Life Act”) and the chemical abortion ban. Had they been allowed to become law, they would have banned nearly all abortions in Wyoming but left exceptions for the life and health of the mother, and for rape and incest.
The Life Act was the Legislature’s attempt to bolster an earlier, 2022 trigger ban that went into effect when the U.S. Supreme Court overturned Roe vs. Wade. Owens blocked both versions from enforcement in back-to-back court cases.
Owens on Nov. 18 overturned both the Life Act and the chemical abortion ban as unconstitutional.
Abortion is health care, Owens ruled, and is therefore a fundamental right under the Wyoming Constitution’s promise of health care autonomy for every competent adult.
Wyoming voters enacted that promise in 2012, in an attempt to fight an Obama-era health insurance program often called “Obamacare.”
Those Doctors
When striking down the bans, Owens deferred frequently to doctors who’d informed the court of perils that could follow women if they can’t get abortions.
This was improper, Jerde argued.
He pointed to case law telling courts that, when people challenge a law as altogether, or “facially” unconstitutional, the courts need to inspect the law itself and the legislative history surrounding it.
That legislative history reveals a Wyoming opposed to abortion, wrote Jerde. The Wyoming Territory’s first legislature banned the practice starting in 1869, and the state legislatures that followed statehood continued those bans.
Only in 1977, four years after the U.S. Supreme Court codified a federal right to abortion in Roe, did Wyoming concede the then-legality of the practice – up to viability of the fetus – by updating its laws.
Newspapers, constitutional analyses and the legislative debates that preceded the health care amendment’s 2012 passage all touted it as an anti-Obamacare measure – not as a promise of abortion access, Jerde added.
He argued that Owens should have looked to that history to determine the will of Wyoming.
She relied “improperly” on the expert opinions of doctors who favor abortion, Jerde added.
“By definition, an expert opinion cannot be a legislative fact because an expert opinion is not a fact,” he wrote.
Not Health Care, Says Wyoming
Jerde also argued that abortion is not health care. Certainly, elective abortions undertaken for reasons other than a woman’s health – like her financial hardship or career prospects – aren’t health care; and abortions that are undertaken to protect a woman from serious health concerns are already covered under the Life Act’s exceptions, he wrote.
Jerde also pointed to the word “own” in the constitutional provision giving each competent adult a right to his or her “own” health care. An unborn baby is a separate being from his mother, he argued, so the mother isn’t advancing her “own” health by terminating him except under the ban’s serious-injury or death exceptions, he wrote.
Wrong Test
Owens used the wrong law test when striking down the bans, Jerde’s brief argues.
She applied the strict scrutiny test reserved for fundamental rights. Though health care access is a right under the Wyoming Constitution, that section provides its own test, which is friendlier to legislative measures than the one fundamental rights trigger in court, Jerde wrote.
The section says the Legislature may restrict health care access as is “reasonable and necessary” to promote the people’s health and welfare, or to advance a provision of the Wyoming Constitution.
Owens should have used that test, Jerde wrote.
That test would have called upon the pro-choice coalition suing Wyoming to prove that its bans were unconstitutional, making them shoulder the proof of their case.
The test Owens used, rather, placed the burden on the state to show it had a compelling interest to pass the bans, and did so as narrowly as possible.
Jerde questioned whether Owens violated the concept of separation of powers, by putting such restraints on the state’s lawmaking authority.
Resurrecting Roe
Jerde wrote that Owens tried to resurrect Roe and did so to advance her own preferred results into law.
Owens’ November order did invoke the concept that an unborn baby is only “potential” life until viable, or capable of survival outside of the womb.
The U.S. Supreme Court discarded viability as a frame of reference limiting a woman’s right to an abortion, when it discarded the federal right to abortion altogether in 2022 by returning the issue to state legislatures.
“It is reasonable to infer that the court used (the health care amendment) as a stalking horse to resurrect the right to abortion from Roe as an implicit right protected by the Wyoming Constitution,” wrote Jerde. Yet Owens had “no reason to believe that, by ratifying (that amendment) the Wyoming legislature and the voters intended to adopt the right to elective abortion from Roe.”
He argued further that unborn life should be protected under the Wyoming Constitution’s promise of a right to life for every member of the human race.
“The term ‘human race’ therefore sweeps broadly enough to include unborn babies because, as explained above, unborn babies are human beings from the moment of conception,” wrote Jerde. “As a result, unborn babies enjoy the protections of article 1, section 2 (which preserves a right to life).”
The Achilles Heel
A major weakness in the state’s abortion bans has been their exceptions for rape and incest.
The plaintiffs have questioned throughout the case, how the state could say it’s advancing a key mission to defend unborn life if it would allow the killing of that life under some circumstances.
Jerde seems to concede that there are logical issues there, but argues that under the proper legal test, case law says the state’s law doesn’t have to be “in every respect logically consistent with its aims to be constitutional.”
Clair McFarland can be reached at clair@cowboystatedaily.com.
