Trying to convince a retired judge to add a fresh challenge against Wyoming’s newest abortion ban into a case that’s been ongoing for a year amounts to “judge shopping,” a Wyoming Attorney General’s deputy argued Thursday.
Wyoming has been trying without success to ban most abortions since Roe v. Wade’s overturn in 2022. After years of more temporary court blocks on such laws, the Wyoming Supreme Court on Jan. 6 struck down two abortion bans altogether. It ruled that abortion is health care, and access to it is protected as a fundamental right under the state Constitution’s promise of health care autonomy.
The Legislature in its recent session did not advance to the voters a ballot proposition to change the Constitution. Instead, lawmakers passed a fourth abortion ban, criminalizing abortions after the point at which a fetal heartbeat can be heard: about six weeks. The ban contains a safety net saying that if it’s blocked in court, abortions will become illegal only after the point of viability.
The same pro-choice coalition that has amassed court wins for nearly four years challenged the new Human Heartbeat Act almost as soon as Gov. Mark Gordon signed it into law.
But they brought this challenge in a unique fashion: asking the retired judge to hear the arguments against the new ban, as part of a court challenge against lesser restrictions that has been ongoing for a year.
Lumping the two cases together will create judicial economy and keep from serializing litigation on the same topic, the pro-choice coalition argued earlier this month.
Actually, it amounts to “judge shopping,” the state of Wyoming countered Thursday.
“While ‘forum shopping’ – choosing a court – is often legally permissible, judge shopping is an improper manipulation of the legal process,” says a motion Wyoming Attorney General Deputy John Woykovsky filed Thursday in the case, which sits in the Natrona County District Court.
“Judge shopping is recognized as ‘particularly pernicious,’” Woykovsky wrote, adding, “The Court should deny Plaintiffs’ motion because it amounts to judge shopping.”
Woykovsky wrote that the method the pro-choice group chose “(leads) one to conclude that they instead prefer to have the matter decided by this judge.”
Back Up
The pro-choice group comprised of Danielle Johnson, Drs. Giovannina Anthony and Rene Hinkle, the nonprofit group Chelsea’s Fund and the abortion clinic Wellspring Health Access challenged two abortion restrictions last year: a law requiring ultrasounds before the prescription of chemical abortion drugs, and a law requiring licensure of surgical abortion clinics.
The group at first filed in the Teton County District Court, where Judge Melissa Owens declined to hear the case and said the circumstances of its filing suggest “forum shopping.”
An abortion clinic operated in Jackson during earlier challenges in Owens’ court in 2022, but that clinic shuttered in 2023.
Wellspring Health Access opened as the state’s lone abortion clinic that same year – in Casper.
Owens told the group to re-file its 2025 challenge in the “proper venue,” and the group answered by filing the case in the Casper-based Natrona County District Court.
District Court judges in Wyoming stand for retention every six years. Meaning every six years, voters in their respective judicial districts can vote to keep or fire their judges.
When the group filed in the Casper court, the Wyoming Supreme Court assigned a retired judge, District Court Judge Thomas T.C. Campbell, to hear the case.
Wyoming law allows retired judges to be recalled to serve on cases but doesn’t make them stand for retention.
In appointing Campbell, the high court at the time cited Natrona County’s “overburdened docket” and the “extraordinary nature of the case, which is expected to require significant judicial attention within tight timelines.”
Nope
Woykovsky in his Thursday filing launched multiple arguments at the plaintiffs’ request that Campbell hear their new challenge as part of the one-year-old case.
Those arguments are:
- Justice demands a new lawsuit since the earlier case is so advanced, and the abortion ban is an entirely different question than mere abortion restrictions.
- Trying to include the new law in the older case would make more delay than otherwise.
- The move would strip the people of Wyoming of their representation since they can’t un-retain the judge involved.
- The move would be “futile” since Campbell’s authority to hear the original case was limited.
Woykovsky unpacked his retention concern, saying Campbell isn’t the only one whose involvement denies the people the vote of retention.
The case was filed when Wyoming Supreme Court Justice Bridget Hill was still the state’s attorney general. Meaning, she’d have to conflict out of any appeal stemming from it.
Wyoming Supreme Court Justices stand for retention before the entire state every eight years.
For the Jan. 6 opinion, the court had recalled retired Chief Justice Kate Fox to serve as one of the deciding justices. Fox had also heard the oral argument in that case before she retired.
Campbell has set a hearing on this argument for March 30 in Natrona County District Court.
John Robinson, a Wyoming-based attorney for the pro-choice group, did not immediately respond to a text message request for comment on Woykovsky’s “judge shopping” claim.
Clair McFarland can be reached at clair@cowboystatedaily.com.
