On April 24, a Natrona County District Court Judge wiped away the will of the Wyoming people, issuing an order to enjoin the Human Heartbeat Act. To "enjoin" a law means to halt enforcement pending a final decision from the court. It effectively freezes the legislature's work as the people’s representatives before a full trial on the merits takes place.
Having read the decision, the reasoning is entirely predictable. It is not the work of a neutral umpire calling balls and strikes. It is the result of a rigged game, played with a stacked deck, using the poisoned precedent of a Supreme Court that has abandoned the rules of constitutional construction.
Legal Fiction And Shield Of Licensure
To justify freezing a law that protects a beating human heart, the court relies on a profound legal fiction. It is the exact same fiction created in 1973 by a Supreme Court in Roe v. Wade that purposefully ignored science: the fiction that human life does not exist in the unborn.
Today, biology unequivocally confirms when human life begins. Yet, the abortion clinics and providers who sued to stop this law claimed they would suffer "irreparable injury" if the Heartbeat Act were enforced.
Let us abandon the sterile legalese and look at what the court cited in its order. The district court wrote that the abortionists face "the risk of criminal prosecution, imprisonment, and loss of licensure."
That is the "irreparable harm" recognized by this court. Because prior judicial overreach obliterated our state limits, their legal grievance is essentially that they might face professional consequences for killing children up to the very moment of birth.
To a logical mind, the only truly irreparable harm in this equation is the irreversible destruction of a developing human being.
Yet, the court looks at a beating human heart and decides the real victims are the abortionists who might lose their medical licenses for stopping it.
The court effectively ruled that protecting a doctor's professional credentials is more important than protecting a human life. It is a grotesque inversion of justice.
Advocate For Biological Reality
Contrast this fiction with the magnificent job our state's Attorney General, Keith Kautz, is doing. He stood before the court and stated a simple, undeniable biological reality.
The legislature drew a line at the detection of a fetal heartbeat because a heartbeat confirms there is a human life to protect.
It is a profound, unassailable argument.
The problem is that General Kautz is forced to argue in a system that has rigged the rules against the people acting through their representatives.
Fruit Of The Poisonous Tree
The injunction is based on the legal doctrine of stare decisis, which requires lower courts to follow higher court precedents.
But stare decisis is only a virtue when the original decision was based on the Constitution. When a Supreme Court fabricates a right, stare decisis merely passes the lie down the assembly line.
In criminal law, evidence found through an illegal search is excluded as the "fruit of the poisonous tree." The tree was poisoned, making its fruit toxic. The district court order is precisely the bitter fruit of a poisoned constitutional tree.
The original sin was committed earlier this year by the Wyoming Supreme Court in State v. Johnson, the exact case the district court relied upon. To reach a predetermined political conclusion and invent a fundamental right to abortion, the high court broke the most basic rule of legal construction: you must read the entire text of the law.
The Supreme Court triumphantly quoted the part of the 2012 health care amendment granting adults the right to make health care decisions.
But they intentionally blinded themselves to subsection (c), which explicitly grants the legislature the power to enact reasonable and necessary restrictions to protect the general welfare. The Constitution is not a buffet where judges select only clauses, they find palatable. By erasing the legislature's explicit constitutional authority, the Supreme Court poisoned the jurisprudence.
Rigged Jurisprudence
Because the Supreme Court broke the rules of construction in Johnson, the district court was bound by stare decisis to break them again. He evaluated the Heartbeat Act using a rigged standard handed down by his superiors, rather than the plain text of the Wyoming Constitution.
Judges will throw their hands up and claim they are bound by precedent. They will tell the public they are compelled to strike down the will of the people.
But following a flawed precedent does not make a judge noble; it makes them complicit in the usurpation of the people’s power manifested in the legislature.
Attorney General Kautz is right.
A beating human heart is a universal, scientific indicator of life. Wyoming’s legislature, acting on behalf of the people, possesses the absolute constitutional authority, explicitly granted by the people, to restrict medical procedures to protect that life.
Until the Wyoming judiciary finds humility to admit its past errors, abandon its rigged games, and read the Constitution exactly as written, we will continue to see the will of the people frozen by the stroke of a single judge's pen.
Stare decisis is no excuse for constitutional vandalism.
We do not need courts that blindly eat the fruit of a poisonous tree.
We need courts that respect the text, respect the people’s representatives in the legislature, and respect the profound sanctity of human life.
Fred can be reached at: Fred.Harrison@fjhlawoffice.com
Fred Harrison is an attorney in Cheyenne and served in the Wyoming Legislature from 1982 - 1992
