In asking a retired judge to lump their challenge of a new abortion ban into a year-old case regarding lesser abortion restrictions, a group of perennial pro-choice litigants wasn’t judge-shopping, but they also can’t expand their year-old case that significantly, retired District Court Judge Thomas TC Campbell ruled Wednesday.
On Jan. 6 the Wyoming Supreme Court declared that abortion access is a fundamental health care right under the Wyoming Constitution. It suggested that if the Legislature wanted to overcome that right, it could ask the people to change the state Constitution.
The Legislature didn’t do that. Instead, it passed its fourth abortion ban since Roe v. Wade was overturned in 2022. The prior three abortion bans did not survive court challenges, falling either to temporary court blocks or permanent ones.
In a move that Gov. Mark Gordon and numerous lawmakers predicted, the same pro-choice coalition that has successfully halted Wyoming’s abortion bans sued in March to block the passage of the new Human Heartbeat Act, which seeks to ban abortions after the point at which a fetal heartbeat can be heard.
But the pro-choice group did so in a new way: asking Campbell, who is retired and doesn’t face retention elections, to add their new challenge into their year-old case against lesser abortion restrictions.
Wyoming Attorney General Keith Kautz and his deputies raised numerous objections to that. They said the restrictions and the ban are too different to share a case. Campbell lacks jurisdiction to hear the new challenge, they argued, while letting a retired judge hear the new challenge cuts out the people’s authority to vote on judge retention. The pro-choice coalition’s maneuver “amounts to judge shopping,” they said.
Campbell disagreed with most of that.
Whether the people of Wyoming can un-retain a judge on a case should not drive decisions about which judge should hear a case, Campbell said.
“This Court is compelled to note that it does not conclude that it lacks jurisdiction; nor does it find that (the pro-choice group’s) Motion constituted inappropriate judge shopping, any more than Defendants’ suggestion that retention elections of judges should factor into such matters and rulings by the judiciary,” wrote Campbell in his Tuesday order. “In fact, the system’s integrity depends on the absence of political pressure from the Court’s decisions.”
But Campbell still denied the pro-choice group’s request, saying it’s not appropriate to add a new challenge against an almost complete ban on abortion to a yearling case challenging lesser restrictions — when that old lawsuit is “ripe for trial.”
“Upending a case on the cusp of completion does not comply with the confines of (the civil court rule on supplementing challenges),” he wrote.
That rule, Wyoming Rule of Civil Procedure 15 (d), says that plaintiffs can supplement, or add to their civil challenges with reasonable notice, and the court can grant that request “on just terms.”
The problem with letting the pro-choice group do that is, the two cases are inherently different, and the older case is in an advanced stage.
Reopening the deadline schedule for things like evidence-swapping would draw out the older case more, he wrote, adding that’s not fair to the state government.
‘General – Justice – Kautz’
Before he was attorney general, Kautz was a Wyoming Supreme Court Justice. Before that he was a district court judge.
People discussing the issues in a Monday virtual hearing in Campbell’s court vacillated on what to call Kautz, with Campbell using the title “General,” and the pro-choice group’s attorney John Robinson calling him “Justice Kautz,” though the two men sparred on the same playing field.
Kautz opened with a statement by George Washington, that the firmest pillar of good government is the due administration of justice.
“It tells us that when justice is duly administered and administered the right way, people can have true confidence in our government,” said Kautz. This he drew back to the relevant civil rules in that hearing, rule 15(d) and another Wyoming Rule of Civil Procedure, rule 15(a).
Both mention justice, but 15(a), which describes changing one’s challenge soon after its initial filing, tells judges to allow that act “freely” when justice requires it.
Rule 15(d), which describes challengers adding to a lawsuit development that happened after its initial filing, doesn’t tell judges to permit those supplements freely.
Judges are to read significance into such wording contrasts, under their own case law, noted Kautz.
The most successful of Kautz’s arguments, in the end, was that the old case was too ripe and the new case too different.
The pro-choice group had argued for coalescing the cases to promote judicial economy and avoid serial litigation.
“As we all know, plaintiffs’ claim of judicial economy in this matter cannot be true,” said Kautz. “The existing case is complete.”
Here To Do Battle
Kautz while laying out differences between the two cases also indicated an intense legal battle ahead.
The restrictions the year-old case is scrutinizing involve certifications for abortion clinics, whether a woman must obtain an ultrasound before obtaining abortion pills, and a carveout where the Legislature had sought to permit off-label drug prescription without extending that benefit to abortion drugs.
The state’s “compelling interest” justifying such laws ties to the health of the mother, in the restrictions, said Kautz.
But for the heartbeat ban, the state’s compelling interest is to protect unborn life, he added.
And while the high court’s Jan. 6 ruling had declared a fundamental right to abortion guarded by the most protective level of court scrutiny in constitutional law, it had also lamented that the state didn’t bring enough legislative evidence to support its position.
The state is bringing that legislative evidence this time around, said Kautz.
And Again
Robinson during his argument noted that the Wyoming Legislature keeps trying to enact legislation restricting or banning abortion, and keeps getting Wyoming into legal battles.
He noted that the restrictions and the bans all invoke the same section of the state Constitution, which promises health care autonomy to competent adults, and to parents on their children’s behalf.
“They can’t really point to any prejudice,” said Robinson of Wyoming’s argument against lumping the new challenge into Campbell’s case.
Robinson emphasized the rule’s grant of discretion over his request and said the legal issues in the restrictions versus the ban weren’t too confusing when taken together.
“This is not rocket science, and it’s not complex,” he said.
Robinson also said that should Campbell deny the pro-choicers’ request, as he later did, they would simply file a new lawsuit, rather than challenge his choice in an appeal.
“But the judicial economy is right here staring at us your honor,” added Robinson.
Clair McFarland can be reached at clair@cowboystatedaily.com.
