A Casper-based judge on Friday blocked Wyoming’s newest abortion ban.
That makes the fourth near-total abortion ban Wyoming judges have blocked since the 2022 overturn of Roe v. Wade.
Every time, the judges and justices blocking the bans have pointed to the Wyoming Constitution’s promise of health care autonomy for competent adults.
The Wyoming Supreme Court on Jan. 6 declared that abortion is health care, and that access to it is a fundamental right, restrictions to which must survive the most rigorous test of constitutional law.
Natrona County District Court Judge Dan Forgey referenced that decision in his Friday order for a temporary injunction on the Human Heartbeat Act.
For about six weeks, the act criminalized abortions after the point at which a fetal heartbeat can be detected. It contained exceptions for health emergencies, but not for rape or incest.
Now abortion is legal again in Wyoming, but the law contains a safety net that could soon go into effect, banning abortion after the point of viability.
The law says if a court blocks the heartbeat ban, the Wyoming Attorney General shall review that decision, and if the ban is not enforceable, the AG has 30 days to inform the governor and the legislative Joint Judiciary Committee, who in turn certify the viability provision of the law to the Secretary of State.
Once the governor tells the secretary of state that the alternate provision is effective, the secretary of state has five days to publish the alternate law.
Because of the higher court’s Jan. 6 ruling, wrote Forgey, the pro-choice coalition that challenged the heartbeat ban has “made a sufficient showing” that it’s going to win the case.
That finding doesn’t decide the case, but pronounces its likely outcome.
The Wyoming Attorney General’s Office had argued, conversely, that the state can overcome the fundamental health care right with its compelling interest in protecting human life.
'Irreparable Harm'
Forgey’s order rests on another prong: the pro-choice group has, he wrote, proven that it will suffer irreparable harm if the law can be enforced.
Two OB/GYNs in that coalition noted that the law effectively bans all abortions statewide.
The doctors and the medical professionals at the state’s one abortion clinic in Casper now face “the risk of criminal prosecution, imprisonment, and loss of licensure,” Forgey related from the group’s argument.
The group had also argued that the law was vague and could cause delayed or refused care in situations whose legality its language leaves uncertain.
The law “(compelled) physicians to perform (invasive) and medically unnecessary procedures,” Forgey related from their argument — a reference to the transvaginal ultrasounds generally used to detect fetal heartbeats — and it blocked telehealth providers who normally send women abortion pills.
Forgey found the pro-choice group had “made a sufficient showing” that its members would suffer “irreparable injury” from the law.
The Wyoming Attorney General’s office had pointed to the frequency of abortions in Wyoming, and the hypothetical connection between the pro-choice group and the Wyoming women whose rights it is purportedly defending.
Forgey said the state’s case “did not persuasively” argue that the plaintiffs won’t suffer irreparable harm.
The block on the heartbeat ban is to remain in place until the court holds later hearings on the merits of the case. In legal speak, the merits are the key issues.
Amend
After the Wyoming Supreme Court's Jan. 6 decision, some lawmakers sought to start the process to change the state Constitution so that the Legislature could restrict or ban abortion.
That effort failed in this year's legislative session.
Clair McFarland can be reached at clair@cowboystatedaily.com.
