By Kate Ready
Jackson Hole Daily
Via- Wyoming News Exchange

JACKSON —  Ninth District Court Judge Melissa Owens decided Wednesday that Wyoming’s abortion ban potentially “transgresses” the state Constitution, meriting a halt on its enforcement until a lawsuit challenging the ban can be decided.

Owens found the plaintiffs had demonstrated probable success in showing that the ban infringes on Wyomingites’ right to make their own health care decisions, discriminates against women on the basis of sex and is unconstitutionally vague.

“The award of a temporary injunction is an extraordinary remedy which will not be granted except upon a clear showing of probable success and possible irreparable injury to the plaintiff,” Owens wrote in a 22-page decision issued after a Tuesday hearing in a Jackson courtroom.

“The Court finds that it is in the public interest to issue a preliminary injunction,” Owens wrote. “Important constitutional questions based on constitutional provisions that are unique to Wyoming are at issue.”

The state can immediately appeal the injunction to the Wyoming Supreme Court, which could overturn it while the case is being heard in the lower court.

Jackson-based attorneys John Robinson and Marci Bramlet filed the suit challenging the constitutionality of Wyoming’s abortion ban on behalf of six plaintiffs, including two women of child-bearing age, two obstetric physicians and two nonprofit organizations.

Special Assistant Attorney General Jay Jerde appeared in person at the Tuesday hearing to defend the ban on behalf of the state of Wyoming, Gov. Mark Gordon and Attorney General Bridget Hill.

Teton County and Prosecuting Attorney Erin Weisman appeared for Teton County Sheriff Matt Carr, and Town Attorney Lea Colasuonno appeared for Jackson Chief of Police Michelle Weber, who are also named in the lawsuit.

Dr. Giovannina Anthony, an OB-GYN who offers abortion services and is a plaintiff in the case, praised Owens’ ruling.

“I think she clearly acknowledged that the exceptions in the law are really vague; they offer no guidance to physicians in how we can use our professional medical judgment without fearing a felony charge and prison,” Dr. Anthony said. “I’m really deeply appreciative that she recognized that this goes way beyond the elective abortion scenario and really affects all pregnant women even with desired pregnancies.”

Jerde said in court Tuesday that the right to make health care decisions did not afford women the right to abortions, as that 2012 amendment to the state Constitution was ratified with the intention of protecting Wyomingites from the Affordable Care Act. He also said Wyomingites can only choose between health care services that the Legislature deems legal.

“A court is not at liberty to assume that the Wyoming voters who adopted [Section 38] did not understand the force of language in the provision,” Owens wrote in her decision.

“Additionally, the Court notes that [Section 38] was adopted during a period of time when Wyoming statute … provided Wyoming women with the choice to make their decision regarding abortion up until the point of viability without restrictions.”

Article 1 Section 38 of the Wyoming Constitution affords all competent adults the right to make their own health care decisions.

Definitions cited by Merriam-Webster, the Wyoming Legislature and the Wyoming Health Care Decisions Act lend themselves “to a finding that a decision to have an abortion is a health care decision,” Owens wrote.

“Reasonable persons could consistently and predictably agree that an abortion is a procedure, usually provided by a medical professional, that impacts a woman’s physical, mental or emotional well-being,” Owens wrote. “Under the ordinary and plain meaning of the words ‘health care’ and ‘decision’ the Court could find that the decision to have or not have an abortion procedure is unambiguously a health care decision.”

Next, Owens found that the ban as written may not be “the least intrusive method of protecting the state’s compelling interest to protect fetal life.”

Owens cited the lack of exceptions for appropriate medical judgment, lethal fetal abnormalities and pregnant mothers diagnosed with a significant substance abuse disorder.

“Take the heart-wrenching situation where a woman with a very much wanted and desired pregnancy is informed that her fetus has a genetic abnormality that is incompatible with life,” Owens wrote. “The HB 92 amendment affords this woman no right to make her own health care decision in Wyoming nor any right to seek the recommended evidence-based care from her Wyoming physician.”

In this circumstance, Owens wrote that she could not see how restricting a woman’s right to make her own health care decision is “reasonable and necessary” to protect the health and general welfare of the people.

“When the potential life is found to have a diagnosable genetic defect that is incompatible with life, the Court could find that the amendment is beyond a reasonable doubt not related to a legitimate government interest,” Owens wrote.

Owens also found that the plaintiffs’ argument that the ban discriminates against women could very well violate Wyomingites’ equal protection under the law.

Jerde countered that in court, asserting that the statute doesn’t single out women because the ban applies to all equally, both male and female providers.

“Nowhere in the statute does it say the word ‘woman,’ ” Jerde said Tuesday in court.

Owens disagreed.

“The statute only restricts a health care procedure needed or elected by women,” Owens wrote. “The statute restricts a woman’s right to make their own health care decisions during pregnancy and discriminates against women on the basis of their sex.”

Finally, Owens found that the plaintiffs have shown probability of success that the statute is unconstitutionally vague. The limited exceptions in the trigger law, permitting abortions for medical emergencies, rape and incest, are “vague and provide no guidance to the doctors,” Owens wrote.

Examples given in her decision are whether a physician can provide an abortion for a rape exception on the patient’s word alone or if a formal charge needs to be present before the physician can do so.

“It is unclear when the conduct is permitted or prohibited in this circumstance and it is unclear how different law enforcement agencies and prosecuting attorneys across the state will apply the law,” Owens wrote.

Her decision also cited the lack of an “appropriate medical judgment” qualification as making the law unconstitutionally vague.

Robinson declined to comment on the decision, and Jerde did not respond to requests for comment.

Julie Burkhart, founder and president of Wellspring Health Access, released the following statement Wednesday after the injunction was granted. Wellspring Health Access, a nonprofit, is one of the six plaintiffs.

“While we are heartened by today’s outcome, we know the fight to keep abortion legal in Wyoming is far from over,” Burkhart said in the statement. “We remain committed to doing everything we can to both protect the legal right to abortion in Wyoming and ensure that patients can actually receive the reproductive health care they need.”

Burkhart said her team is still working toward opening their Casper clinic in the coming months and thanked “communities across Wyoming” for their support as they continue providing reproductive health care.

Dr. Anthony said she will continue to provide abortion care in her Jackson office.

“This allows us to continue to provide evidence-based care rather than force the state’s doctors into really untenable situations,” Dr. Anthony said. “By kicking this back to the states, we’re doing what the government has asked us to do. Our Constitution is unique in Wyoming, I believe, in terms of guaranteeing a lot of different types of equality and privacy.”