• Supreme Court wants judge to ‘narrow the issues’ first.

By Kate Ready
Jackson Hole News&Guide
Via- Wyoming News Exchange

JACKSON —- Two weeks after being asked to weigh in on whether the state’s two abortion laws are constitutional, the Wyoming Supreme Court has declined to answer the thorny constitutional questions without first hearing from the lower court.

For the second time in less than two years, the Wyoming Supreme Court has declined 9th Judicial District Judge Melissa Owens’ request that they answer 14 questions. The higher court instead kicked the matter back to Teton County, citing that the parties would be better served by a ruling from Owens.

“This Court … concludes it and the litigants would be best served by the district court ruling on the summary judgment motions,” the higher court’s April 9 declination order stated. “This Court believes a ruling from the district court could refine and narrow the issues this Court will be called upon to determine.”

In December, Owens heard arguments from both sides of the case — six plaintiffs challenging the state, governor, attorney general and local law enforcement. Each asked Owens to decide the case in their favor now, foregoing a trial.

Rather than rule on those summary judgment requests, Owens asked the justices to answer questions for which Owens couldn’t find prior Wyoming Supreme Court precedent, such as whether two abortion bans passed in 2023 violate Article 1, Section 38 of Wyoming’s Constitution. Section 38 grants competent adults the right to make their own health care decisions.

If the justices found the laws did not violate Section 38, Owens asked 13 other questions, such as whether the laws violate constitutional rights to privacy, equal protection, religious freedom and others.

“This Court acknowledges it will likely be required, at some point, to rule on the constitutionality of Wyoming’s abortion laws,” the order stated. “This Court stands ready to do so, if and when those constitutional questions are properly presented to it.”

Chief Justice Kate Fox wrote that some components they needed were missing from the order, and the court relies upon the facts presented by the certifying court.

For example, the summary judgment motions were not part of the certification order, Fox wrote, and thus, not part of the justices’ review.

As another example, the order noted that appellants claim the abortion laws violate rights to religious liberty.

“However, the certification order does not provide facts to indicate what religious beliefs are at issue and how those beliefs may be violated by the abortion laws,” the order said.

Yet another question Fox pointed to as requiring more facts is whether the two bans are unconstitutionally vague. Wyoming has passed both a general ban on abortions and a specific ban on medication abortions.

“That question appears to require facts to support it, but the certification order does not detail those facts,” the order stated.

The Wyoming Supreme Court similarly declined to answer constitutional questions around abortion in December 2022, citing a “limited factual record.”

This closes the matter for now in the Wyoming Supreme Court, and punts the matter back to Teton County court, where Owens will now be tasked with taking up the dueling requests for summary judgment.

Abortion remains legal in Wyoming, as Owens halted both laws last summer while the case plays out.