A retired judge specially assigned to review Wyoming’s two newest abortion restrictions — one requiring ultrasounds and one requiring the state’s only abortion clinic to certify as a surgical center — on Monday paused both laws during a lawsuit challenging them as unconstitutional.
The most noteworthy facet of Judge Thomas T.C. Campbell’s order for preliminary injunction is his treatment of abortion as a fundamental health care right. That’s in keeping with a November order from another District Court judge, Melissa Owens of Teton County.
It’s also an approach that’s now being disputed in the Wyoming Supreme Court.
The Wyoming Constitution promises the right of each competent adult to make his or her own health care decisions.
Owens ruled in November that abortion is under that umbrella.
Wyoming’s attorney Jay Jerde has argued for months, conversely, that abortion is not health care, and that Wyomingites’ health care rights are not on the same level as other constitutional rights, because the Constitution says the health care right is to be judged under a different test than other fundamental rights.
Campbell was not convinced.
“While this constitutional provision is undoubtedly unique, the State Defendant’s proposition ignores applicable precedent and other provisions of the Constitution,” wrote Campbell in his Monday order. “Certainly, the Court… cannot ignore its place in the Constitution and recognition as an inherent right.”
Campbell wrote he also found the state’s other arguments for the merits of its two new laws unconvincing.
The pro-abortion coalition challenging the new laws say surgical abortions are inherently safe.
Wyoming disputes that, “but offer(s) no contrary evidence,” wrote the judge.
Campbell wrote that the state failed to link a series of surgical-center requirements one of the new laws would place on the state’s only abortion clinic, Wellspring Health Access, to “women’s safety and general welfare.”
As to the ultrasound requirement, Wyoming argued it’s necessary to obtain informed consent from women before giving them abortions. For example, ultrasounds could identify ectopic pregnancies earlier and promote women’s health, the state argued.
Campbell questioned, then why “only women seeking abortions would benefit” from mandatory ultrasounds.
He challenged a 48-hour waiting period provision in the law on the same grounds, saying it “serves no legitimate purpose.”
Likelihood Of Success
Campbell ruled that the pro-choice coalition is likely to win this legal challenge.
And because abortion is a health care right, he wrote, the state’s laws pose the risk of “irreparable harm” to that coalition, which includes the abortion clinic and a woman who has been pregnant before and says she seeks to become pregnant again.
The case is ongoing.
Clair McFarland can be reached at clair@cowboystatedaily.com.
