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Wyoming tells state supreme court to restrict abortion access

Jay Jerde, the state's special assistant attorney general, listens at a summary judgment hearing for the abortion case in late 2023 in Teton County District Court. He is now leading the change to appeal the judge's decision.
Kathryn Ziesig
/
Jackson Hole News&Guide
Jay Jerde, the state's special assistant attorney general, listens at a summary judgment hearing for the abortion case in late 2023 in Teton County District Court. He is now leading the change to appeal the judge's decision.

Wyoming is telling the state’s supreme court to restrict abortion access once and for all.

On Feb. 3, a state attorney filed a 100-page argument, saying a Teton County district judge made a mistake when she struck down the state’s two near-total abortion bans and granted access earlier this fall.

Judge Melissa Owens argued that abortion is healthcare, so it’s protected under the state’s constitution.

“The Court cannot reconcile how a small group of prenatal cells, such as a zygote, that has only the potential of life, can trump the fundamental right of a living, breathing, pregnant woman to make her own medical decisions,” Owens wrote in her ruling.

The opinion hinged almost entirely on an addition to the Wyoming Constitution, which grants Wyomingites the right to make their own healthcare decisions. That 2012 amendment was a conservative rebuke of the Affordable Care Act, but now it’s the crux of the ongoing legal battle.

The state continues to argue that “elective abortion” doesn’t qualify as healthcare because it’s not always needed to maintain the “physical condition” of the pregnant woman or restore her from physical disease.

It says there are exceptions to the state’s two laws banning abortion in cases of rape, incest or fatal threats to a woman’s life, though abortion access advocates argue these are still far too narrow.

But ultimately, the state says it’s not actually just a woman’s decision to make — it also impacts her “unborn baby,” which the state defines from conception.

“An unborn baby literally cannot protect itself from being killed by an elective abortion,” wrote the state’s special assistant attorney general, Jay Jerde. “Only the Wyoming legislature through its lawmaking authority can do so.”

Jerde added that Owens violated the separation of powers by restricting this lawmaking authority.

The case’s plaintiffs, which includes an OB-GYN, a nurse and other abortion advocates, will have until March 20 to file their reply in the Wyoming Supreme Court. The state will have a chance to reply, and then the five-member court will schedule oral arguments as soon as possible. Those will be public and livestreamed.

The chief justice has previously said the court stands ready to rule on the constitutionality of the state’s abortion laws. After the hearing, justices have 120 days to issue an opinion. If everything goes according to schedule, that could happen before early fall.

In the meantime, abortion will remain legal in Wyoming, but lawmakers are trying to restrict access in other ways, such as passing harsher regulations for abortion clinics and requiring ultrasounds no more than 48 hours before taking the medication.

Hanna is the Mountain West News Bureau reporter based in Teton County.

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