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Abortion to remain legal in Wyoming until lawsuit questioning state’s ‘trigger ban’ is resolved

Abortion Jackson Protest
Will Walkey
An abortion rally in Jackson, Wyo. following the U.S. Supreme Court's decision to overturn Roe v. Wade.

Teton County judge Melissa Owens granted a preliminary injunction Wednesday afternoon that blocks the enforcement of Wyoming’s abortion ban while a legal battle over its constitutionality is deliberated.

The ruling comes after an hours-long hearing Tuesday where representatives from both the plaintiffs and the defendants made arguments about the state’s ban, which was supposed to go into effect about a month after the U.S. Supreme Court overturned Roe v. Wade.

A telephone conference is now set for Aug. 24, where parties will discuss the timing of this lawsuit and how it will be scheduled. Meanwhile, abortion procedures remain legal in Wyoming for the foreseeable future. It is likely that the state supreme court will take this case up eventually.

In her Wednesday ruling, Judge Owens said she was swayed by several of the plaintiff’s arguments. Those include the fact that there could be “irreparable” harm to pregnant women and abortion providers due to the vagueness of current exceptions in the law, which are for rape, incest, and to preserve the health of the mother.

Additionally, she said she was sympathetic to the argument that the right for residents to make their own “healthcare decisions” is protected in the Wyoming Constitution through Article 1, section 38 of the document. State voters passed that amendment in 2012.

“The analysis lends itself to a finding that a decision to have an abortion is a health care decision,” Owens wrote in her final ruling.

Defendants, however, argue abortion wasn’t at all what lawmakers had in mind when the amendment was drafted during the Obamacare years, and thus shouldn’t matter in this case. Furthermore, the attorney representing the state Jay Jerde said “abortion” is never defined in the Wyoming Constitution and so isn’t a right to be infringed upon. Abortion was illegal in Wyoming until the Roe v. Wade decision in 1973, so Jerde said it’s not status quo for the practice to be protected.

Owens, however, didn’t buy that argument.

“A court is not at liberty to assume that the Wyoming voters who adopted Article 1, section 38 did not understand the force of language in the provision,” she wrote.

Abortion rights groups praised this decision. The only clinic that provides abortions in the state will continue to offer procedures while enforcement remains blocked.

“While we are heartened by today’s outcome, we know the fight to keep abortion legal in Wyoming is far from over,” said founder of Wellspring Health Access Julie Burkhart, who is trying to open a clinic that offers abortion services in Casper. “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.”

Judge Owens issued a temporary two week block on enforcement of the ban after it was originally supposed to go into effect back in July. This preliminary injunction continues that block until the lawsuit is done.

If the lawsuit eventually rules in favor of the plaintiffs, the Wyoming Legislature would have to vote to amend the state constitution to impose an abortion ban, and the public would then have to approve that law at the ballot box.

Will Walkey is Wyoming Public Radio's regional reporter with the Mountain West News Bureau. He first arrived in Wyoming in 2020, where he covered Teton County for KHOL 89.1 FM in Jackson. His work has aired on NPR and numerous member stations throughout the Rockies, and his story on elk feedgrounds in Western Wyoming won a regional Murrow award in 2021.
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