Impact of Wyoming abortion brief unclear

Victoria Eavis, Casper Star-Tribune via Wyoming News Exchange
Posted 8/9/21

Gov. Mark Gordon announced last month that Wyoming joined more than 20 other states in filing an amicus brief before the U.S. Supreme Court, arguing that states should be left to regulate elective abortions.

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Impact of Wyoming abortion brief unclear


CASPER — Gov. Mark Gordon announced last month that Wyoming joined more than 20 other states in filing an amicus brief before the U.S. Supreme Court, arguing that states should be left to regulate elective abortions.

An amicus brief is a document filed by parties taking one side in a case and who have some interest in the outcome of the matter. But experts say the brief is not likely to have much weight when it comes to resolving the legal issue before the justices.

“My hunch is that the brief won’t have a lot of sway at the Supreme Court, though it might have political value for the governor from signing it,” said Lincoln Caplan, a senior research fellow at Yale Law School.

The brief was filed in support of Mississippi in Dobbs v. Jackson Women’s Health, a pending case on the constitutionality of a 2018 Mississippi law, the “Gestational Age Act,” which banned abortion operations after the first 15 weeks of pregnancy. Mississippi is challenging lower court rulings that held the state’s law is unconstitutional under Roe v. Wade, the landmark Supreme Court decision that legalized abortion in the U.S.

After Mississippi passed the law, the state’s one abortion clinic sued, arguing that the law does not follow the rulings of Roe v. Wade as well as a 1992 decision that upheld Roe’s core tenet, Planned Parenthood v. Casey.

“This year has made abundantly clear that federal overreach harms Wyoming and its citizens,” Gordon said in a press release. “Wyoming must stand up for states’ rights. I am happy to extend support to Mississippi in order to properly keep state control over state issues, especially in the fight to protect the unborn.”

As of last week, the other states that have signed on are Texas, Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah and West Virginia. Of these, only three — Kansas, Kentucky and Louisiana — have Democratic governors. Briefs that are different from the one that these states signed can occasionally have sway, however. Famously, in the 2003 cases about affirmative action in higher education, an amicus brief on behalf of former military officers had an impact on the Supreme Court’s understanding of the value of diversity in institutions and of those institutions’ dependence on higher education affirmative action programs to help create a path for diverse talent.

The Supreme Court justices will hear the case in the coming term, which starts in October. They’re expected to have a decision in the spring or early summer next year, just as the 2022 elections, which Gordon is expected to run in, are really ramping up.

“The Governor is pro-life and has always been clear about his position,” Michael Pearlman, director of communications for Gordon, said in an email. “He has also been a consistent advocate for states rights. The state’s interest in both these issues is why Wyoming joined the brief.”

Gordon has remained consistently pro-life, but believes that there can be exceptions when the mother’s life is at risk, or in cases of incest and rape. In 2019, Gordon signed House Bill 103 into law, which established additional information that physicians are required to report when an abortion is performed. The next year, he vetoed a born-alive bill that he said could have unintended consequences for parents who sought to have a child but learned their pregnancies were not viable. The Dobbs case marks the first major abortion-related matter heard by new 6-3 conservative majority on the Supreme Court. And the fact that justices even agreed to take this case up is notable, as it is a direct challenge to Roe v. Wade, a long-held precedent, which are rarely overturned.