Judge: Lawmakers can’t ‘legislate away a constitutional right’

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JACKSON — For the second time in eight months, Judge Melissa Owens has halted Wyoming lawmakers’ efforts to ban access to abortion.

Both times, the Teton County 9th District Court judge has ruled that the abortion bans may violate the Wyoming Constitution and cause the plaintiffs irreparable harm. So the judge has blocked enforcement of the bans until the issue can have a full airing in court.

The latest lawsuit filed March 17 resets the clock by voiding the former case, which had a trial date set for December, and sends defendants and plaintiffs back to court to restart oral arguments.

Six plaintiffs — two obstetric physicians, two nonprofits that provide abortion services, an emergency room nurse and a Jewish woman — filed both lawsuits that blocked the original trigger ban and the new law that replaced it. Wyoming’s lone abortion provider is a women’s health clinic in Teton County that solely provides medication abortion services.

The plaintiffs asked that the latest attempt to ban abortion, House Bill 152, be declared invalid. Gov. Mark Gordon allowed HB 152 to become law March 19 without his signature. 

Many issues remain the same as those raised in last year’s filings challenging the now-defunct trigger ban — so called because the ban hinged on and was triggered by the U.S. Supreme Court's later overturning Roe v. Wade.

The group of women asserts that the new abortion law, albeit more detailed than last year’s ban, still contravenes many of the same constitutional protections cited previously. Those include Wyomingites’ rights to make their own health-care decisions, privacy, religious freedom and equal protection under the law, among others named in the state constitution.

The near total ban, titled the “Life is a Human Right Act,” includes exceptions for abortions when needed to prevent death, the “substantial risk of death” or “permanent impairment of a life‑sustaining organ” for the pregnant mother. Abortions also would be allowed if the fetus has lethal birth defects or in cases of rape or incest.

Last year, Owens granted a temporary restraining order on the now-void trigger ban in a July 28 hearing. Owens questioned whether lawmakers violated Article 1, Section 38 of the Wyoming Constitution, which affords all competent adults the right to make their own health-care decisions.

Lawmakers responded by adding language to this year’s bill stating that “abortion is not health care.”

Owens said in last week’s hearing that that determination was an overstep and constitutional question for the courts.

“The Legislature declaring that abortion is not health care takes away from the duty of this court to decide constitutional questions of law,” Owens said, “and that violates the separation of powers.”

There may be evidence to show abortion is health care, Owens said, and the Legislature cannot make an “end run” around the constitution.

“The state cannot legislate away a constitutional right,” she said.

In November 2012, Wyoming voters overwhelmingly approved a constitutional amendment enshrining the right of adults to make their own health-care decisions. The amendment was spurred in part by Republican lawmakers touting fears that the newly passed Affordable Care Act would lead to “death panels” rationing end-of-life care.

In issuing last year’s restraining order, Owens said the abortion trigger ban might have been unconstitutionally vague, pointing to the lack of exceptions for appropriate medical judgment and lethal fetal anomalies.

She questioned how forcing mothers to give birth to fetuses that will not survive outside the womb acted in accordance with the Legislature’s stated objectives: to preserve prenatal life, protect maternal health and safety, eliminate gruesome and barbaric procedures as well as mitigate fetal pain.

Lawmakers responded by beefing up the listed exceptions in HB 152 — now permitting abortions when deemed necessary by “reasonable medical judgment” for the treatment of cancers and other diseases, to treat ectopic pregnancies as well as when needed to prevent the permanent impairment of a mother’s life-sustaining organ.

However, plaintiffs argued last week that HB 152 remains “unconstitutionally vague,” citing the complex medical decision-making and impossibility of itemizing each scenario physicians may face.

Lawmakers also responded to Owens’ previous query as to whether patients need to report sexual assault and incest prior to receiving abortions or whether their “word alone” was sufficient. HB 152 now states that a police report must be filed and provided to the physician to qualify for these exceptions.

Otherwise, providing an abortion is a felony punishable by a maximum fine of $20,000, imprisonment for not more than five years or both. The ban aims criminal penalties at the providers, not the pregnant women.

Another issue raised by Owens in last year’s injunction order was that the ban did not provide exceptions for pregnant mothers diagnosed with significant substance abuse disorders. That has not been remedied.

Similarly, the plaintiffs argued last week that the legislators could find no “fix” for the alleged violation of Wyomingites’ rights to equal protection.

“The ban only restricts health care needed and elected by women,” attorney for the plaintiffs John Robinson said in court last week. “This discriminates against women on the basis of sex. It converts women from the moment of conception to vessels of fetuses that surrender their constitutional rights to health care.”

Special Assistant Attorney General Jay Jerde defended the ban in court, stating the “Legislature has always regulated health care.”

“There is no way the Legislature or people intended to say, ‘I can have whatever health care I want,’” Jerde said. “It’s absurd to think that Section 38a (of the Wyoming Constitution) gives individuals the right to have whatever health-care services they want. The Legislature decides that.”

Owens asked Jerde how he could cite the Legislature’s authority to restrict health care while at the same time arguing that abortion is not health care.

“The intentional killing of an unborn child cannot be considered health care,” Jerde said. “Both the woman and the child have constitutional rights. If you view it from the other perspective (i.e., the child’s), it clearly is not health care.”

Marci Bramlet, who argued in court on behalf of the six plaintiffs, countered that she was “not aware of anywhere” that has held that a fetus has constitutional rights.

“I don’t think a legislative enactment of a statute can make that constitutional determination,” Bramlet said. “The statute is an attempt to create fetal personhood.”

Despite being a more detailed iteration of last year’s trigger ban, the plaintiffs said lawmakers were unable to remedy what they argued was “religious coercion” and infringement on Wyomingites’ freedom of religion.

“They want to identify abortion as murder,” Robinson said. “It is our position that this is an establishment of state religion.”

Jerde stated that any similarities to a certain religion were “coincidental.”

Plaintiffs also are challenging the ban against medication abortion in their lawsuit, which became law the same day as HB 152. The plaintiffs did not request that Owens issue a temporary restraining order for Senate File 109, however, as it’s not set to go into effect until July 1. It’s expected that the plaintiffs will file a motion for a preliminary injunction halting SF 109 before July 1.

Robinson and Gov. Gordon agree that not only did lawmakers overstep by declaring abortion is not health care, but voters should settle the questions raised by either approving or denying a constitutional amendment exempting abortion as constitutionally protected health care. 

Changing the constitution would require a two-thirds' majority of the House and Senate before putting the issue in front of voters on a ballot.

Should this ban go into effect, it would be up to law enforcement officers such as Jackson Police Chief Michelle Weber and Teton County Sheriff Matt Carr to enforce.

Town Attorney Lea Colasuonno filed an “answer” March 27 on behalf of Weber, stating that a response from Weber is not warranted at this time because the six plaintiffs’ requests are “directed at the state.”

A reply on behalf of Sheriff Carr, who is named as a defendant along with Weber, the state attorney general, Gov. Gordon and the state of Wyoming, was not filed as of press time March 28.