The state of Wyoming is arguing the state Supreme Court made “mistakes” when it decided two near-total abortion bans are unconstitutional.
Earlier this month, the high court struck down Wyoming’s Life is a Human Right Act and “chemical,” or medical, abortion ban, which together ban most abortions with a few exceptions. The majority of justices said those laws violate residents’ constitutional right to make their own healthcare decisions.
But the state disagrees. The Wyoming Attorney General’s Office filed a petition to rehear the case on Jan. 20.
The petition sets the tone with a quote from former United States Supreme Court Justice Oliver Wendall Holmes.
“Great cases, like hard cases, make bad law,” the quote reads. “For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”
Special Assistant Attorney General Jay Jerde, who wrote the petition, then wrote that the majority of justices made “numerous mistakes or errors of law,” along with not considering an aspect of the state’s argument.
‘A fundamental right to life’
Jerde said the majority of justices failed to consider the state’s argument “that, from conception, an unborn baby has a fundamental right to life under article 1, section 2 of the Wyoming Constitution.”
That section says, “In their inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal.”
When life begins is widely debated, though Jerde cited arguments from several decades-old cases from other states finding that life begins at conception. He said the Life is a Human Right Act, which bans most abortions, is “reasonable and necessary to protect the constitutionally protected rights of both the unborn baby and the pregnant woman.”
Jerde said the court must either recognize that an “unborn baby” has a constitutionally protected right to life, or explain why it does not.
Other ‘errors of law’
The Wyoming Supreme Court’s abortion decision relied largely on article 1, section 38 in the state constitution. In 2012, voters amended the founding document to grant residents the right to make their own healthcare decisions.
Jerde argued the court misinterpreted that law, specifically a subsection, 38(d), that says “[t]he state of Wyoming shall act to preserve these rights from undue governmental infringement.”
He said it’s wrong “to conclude that this subsection imposes a burden on the State to justify any statutory restrictions imposed on the right to make health care decisions.”
Jerde said the court should analyze the case specifically considering subsection 38(c) without considering the government infringement subsection, or 38(d). 38(c) reads, “The legislature may determine reasonable and necessary restrictions on the rights granted under this section to protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution.”
He also said the majority of justices abandoned precedent for how it applies certain legal tests and considers evidence. He said that this could be because of a change in justices in the court.
“When this Court overrules precedent based on nothing more than a change in membership, it causes lasting injury to these important values,” Jerde said.
Since the court released its abortion decision on Jan. 6, state officials and lawmakers have said the justices are too liberal, and suggested bringing back draft legislation to require state Senate approval for Wyoming Supreme Court appointments.
At the same time, abortion access supporters have celebrated the recent decision, calling it sound judgement.
“This is an amazing ruling, which really highlights the weakness of the state's case in trying to limit a constitutionally protected right to make one's own healthcare decisions,” Giovannina Anthony, an OB-GYN in Jackson, said when the decision was released.
What’s next
Now, the other party in the case will have a chance to respond to the state’s petitions. The party is made up of abortion access advocates, including Anthony.
Then, the Wyoming Supreme Court will decide if it’ll rehear the case.
According to the Wyoming Judicial Branch Communication Director Jacob Just, the justices don’t have specific criteria for deciding if they want to rehear a case. If they do decide to take it on, Just said they may or may not hold oral arguments.
Meanwhile, state lawmakers are drafting language to put before voters as soon as this fall to amend the constitution to ban most abortions.
