Wyoming Supreme Court declines to hear abortion case

JACKSON — Access to abortion in Wyoming will remain legal, for now, after the Wyoming Supreme Court has declined to answer questions of law about whether new restrictions passed by the Legislature violate the state’s constitution.

In a notice filed Tuesday, Chief Justice Kate Fox declined to answer a dozen questions certified to the state’s highest court by Teton County District Court Judge Melissa Owens.

“This Court does not believe it can answer all 12 certified questions on the limited factual record provided,” the one-paragraph notice said.

In other words, more evidence is needed before the state Supreme Court will agree to take the case, which can be brought back for it to accept or decline in a future motion.

In her certification order signed Nov. 30, Judge Owens sent 12 questions “up,” focusing on the constitutionality of Wyoming abortion restrictions to which she could not find past Supreme Court precedent.

The questions included whether House Bill 92 is unconstitutionally vague and whether it violates sections of the state constitution, such as Wyomingites’ rights to privacy, equality, private property and to make their own health care decisions.

Six plaintiffs want to see the ban — which criminalizes abortions for women and providers, except in circumstances of rape, incest or physical risk to the mother’s life — declared unconstitutional on a variety of grounds. The plaintiffs are all women: two women of childbearing age, two obstetric physicians and two abortion access nonprofits.

The plaintiffs have argued that their bodies are private property and that the ban discriminates based on sex, as well as violates their rights to privacy and to make their own health care decisions.

The plaintiffs are suing the state, Gov. Mark Gordon, Attorney General Bridget Hill, Teton County Sheriff Matt Carr and Jackson Chief of Police Michelle Weber.

Special Assistant Attorney General Jay Jerde is representing the state defendants and was the one who asked the case be certified to the Wyoming Supreme Court, citing that the case hinged on one question — is abortion a right conferred in the Wyoming Constitution?

John Robinson, one of the attorneys representing the plaintiffs, was unavailable for comment by press time Tuesday but with his co-counsel, Marci Bramlet, objected to certifying the case to the Wyoming Supreme Court.

Robinson and Bramlet argued that it was premature due to the “undeveloped factual record.”

The plaintiffs argued that the case was broader than Jerde’s narrow constriction of it to the sole question of constitutionality.

“These legal issues are mixed questions of law and fact,” stated the document objecting to the state’s motion to certify. “The court is called to examine not just the plain language of the statute at issue, but also the potential consequences of the statute’s implementation, enforcement and operation.”

The criminal ban was set to go into effect July 27, but Owens issued an injunction, halting enforcement of the ban pending the outcome of this case.

Owens is expected to set a scheduling conference to continue hearing the case in Teton County District Court.