Judge suspends Wyoming’s new abortion ban days after it takes effect

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Abortion will again be legal in Wyoming — at least for now — after a judge on Wednesday temporarily blocked a ban that took effect a few days earlier.

Teton County District Court Judge Melissa Owens’ decision halts the ban amid a challenge in her court to a law that took effect Sunday. The Republican-controlled Legislature approved the law despite earlier rulings by Owens that had blocked a previous ban since shortly after it took effect last summer.

Owens put the new ban on hold after a hearing Wednesday in which abortion-rights supporters said the law harms pregnant women and their doctors and violates the state constitution. Owens suspended the ban for at least two weeks.

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The ban prohibits abortion at all stages of pregnancy except in cases of rape or incest that’s reported to police, or to save a woman’s life.

An amendment in the Wyoming Constitution says adults have a right to make their own health care decisions, so Republicans enacted a ban that states abortion is not health care.

However, Owens said it's up to the courts, not lawmakers, to decide whether that's the case.

"The state can not legislate away a constitutional right. It’s not clear whether abortion is health care. The court has to then decide that," Owens said in an oral decision given at the end of an hourslong hearing.

Dr. Giovannina Anthony, center, an OB/GYN and plaintiff in a lawsuit challenging Wyoming's new law banning most abortions, hugs her attorney after a judge issued a temporary halt on the law, on March 22, 2023, in Jackson, Wyoming.  (Kathryn Ziesig/Jackson Hole News & Guide via AP)

The judge did not weigh in on another new abortion law that’s also being challenged in her court: Wyoming’s first-in-the-nation ban on abortion pills. That law, signed by Republican Gov. Mark Gordon on Friday, is not set to take effect until July 1.

Two nonprofits, two doctors and two other women have sued to block Wyoming's broader abortion ban.

While the new overall abortion ban says abortion is not health care, the new abortion pill ban suggests otherwise, John Robinson, an attorney for the abortion-rights supporters, argued. That pill ban allows "treatment" for miscarriages and to save a woman’s life, he pointed out.

"How can abortion be health care in one statute prohibiting abortion and not the other?" Robinson said. "That’s medical treatment."

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Even Gordon, in allowing the overall abortion ban to become law without his signature, expressed concern it didn’t resolve the constitutional question, Robinson noted.

Special Assistant Attorney General Jay Jerde, however, told the judge that the Legislature is permitted to "interpret the constitution and that interpretation is entitled to significant deference from the court." He said it would be "almost absurd" to claim, for example, that the amendment would allow illegal treatments in Wyoming such as medical marijuana.

Owens suspended a similar abortion ban in Wyoming in July, after the U.S. Supreme Court overturned Roe v. Wade, ending a nationwide right to abortion and leaving it to states to decide. After Owens' previous order, lawmakers wrote a new law to try to address her concerns.

Wyoming has only one abortion provider, a women’s health clinic in Jackson that only provides medication abortions but had been forced to stop after the state’s broad ban took effect this week.

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In Casper, the nonprofit Wellspring Health Access had been planning to open the state's only full-service clinic to provide surgical and medication abortions. Its opening was delayed by an arson fire in May 2022, and authorities on Wednesday announced a woman was arrested in the case. Lorna Roxanne Green, 22, of Casper, was scheduled to appear in federal court in Cheyenne on Thursday.

The nonprofit's president, Julie Burkhart, welcomed Wednesday's court ruling.

"Regardless of how anti-choice legislators try to spin it, abortion is health care, and Wyomingites have a constitutional right to that care," Burkhart said in a statement.

After an arson attack prevented that clinic from opening as planned last summer, organizers hoped to open it next month.

Gordon said in a statement he was disappointed by the ruling but looked forward for the next chance for the state to defend the abortion ban in court.