Medication abortion ban challenged in court

JACKSON - A group of individuals and nonprofits that are suing the state in order to keep abortion legal in Wyoming has filed a motion to restrain the enforcement of a chemical abortion ban that's set to take effect July 1.

The group filed a five-page motion for a temporary restraining order Wednesday afternoon in Teton County District Court. The document asks for a hearing no later than June 30 to determine whether the chemical abortion ban will be halted.

In the motion, the group of women, physicians and nonprofits say the chemical abortion ban is unconstitutional, is broader than the criminal abortion ban that's currently enjoined and will "effectively strip plaintiffs and Wyoming women of their right to control their own health care" for the nine months in which they are pregnant.

"The Medication Ban attacks the primary way that Wyomingites access abortion care - through medication - and with fewer exceptions than the Criminal Abortion Ban," the document states. "Because virtually all abortions in Wyoming are medication abortions, the Medication Abortion Ban appears calculated to effect a back-door ban on abortions."

The law banning chemical abortions, Senate Enrolled Act 93, prohibits "prescribing, dispensing, distributing, selling or using any drug for the purpose of procuring or performing an abortion on any person."

The bill, which allows exceptions for the treatment of miscarriages and to save a woman from "imminent peril," is unconstitutional, the plaintiffs wrote, and will cause irreparable harm to not only the plaintiffs and their patients but also other Wyomingites.

The bill does not contain exceptions for lethal fetal abnormalities, ectopic pregnancies, to prevent death or serious injury, or for the treatment of molar pregnancies.

The plaintiffs cited Article 1, Section 38 of the Wyoming Constitution, which gives all competent citizens the right to make their own health care decisions.

"On its face, the Medication Abortion Ban plainly regulates health care," the motion states, going on to list the language in the bill such as "medical treatment," "medical guidelines" and "medical judgment."

The court granted a temporary restraining order after a March 22 hearing, which paused the criminal abortion ban, or Life is a Human Right Act, one of two laws passed in the 2023 legislative session along with the chemical abortion ban.

The criminal abortion ban was set to take effect March 18. It outlaws abortion but provides a greater variety of medical exceptions than the medication ban, while also stating that abortion isn't health care.

In her April 17 written order, Teton County 9th District Court Judge Melissa Owens ruled that a plain analysis of the Wyoming Constitution found that abortion is likely health care and that the plaintiffs may suffer irreparable harm.

Those are findings that the plaintiffs are hoping Owens will make regarding the chemical abortion ban.

In the plaintiffs' 19-page supporting memo filed alongside their motion, they state that the exceptions enumerated in the two abortion bans conflict with each other.

"Where a woman has a legal right to an abortion, the Medication Ban would dictate that she must undergo a surgical abortion, even where a medication abortion is superior from a medical perspective and/or in terms of cost or convenience," the document states.

Thus, the state's purpose of protecting women is not "plausible," the plaintiffs argue, going on to list agencies such as the U.S. Food and Drug Administration, the U.S. Department of Health and Human Services, the World Health Organization and the American College of Obstetricians and Gynecologists that have endorsed medication abortions as safer, less expensive and less invasive than the surgical option.

There is a shortage of surgical abortion providers in Wyoming, the plaintiffs wrote.

Reports from the Wyoming Department of Health's Vital Statistics Services Office were also cited.

"In the last two years for which reports are available (2020 and 2021), all but a single abortion in the state was a medication abortion, and zero patient complications were reported for these abortions," the memo states.

Aside from abortion services, the ban would interfere with a wide variety of health care, because abortion medications such as misoprostol and mifepristone are also used to treat miscarriages and induce delivery of viable fetuses.

The plaintiffs also questioned the penalties for violating the medication abortion ban, which include up to six months in prison and a fine up to $9,000.

"Although the statute exempts from prosecution 'a woman upon whom a chemical abortion is performed or attempted,' it is unclear if this would apply to a woman who herself obtains or uses medication for an abortion," the filing states.

Currently, Teton County's lone abortion provider is a women's health clinic that solely provides medication abortion services. Wellspring Health Access in Casper offers both chemical and surgical abortions.

Until the case is ultimately decided, the March 22 restraining order protects the availability of pre-viability abortions.

On June 2, Judge Owens will be hearing arguments as to whether four abortion opponents will be allowed to intervene to defend the laws.

The group consists of state Rep. Rachel Rodriguez-Williams, a Cody Republican who sponsored the ban; state Rep. Chip Neiman, R-Hulett; Right to Life of Wyoming; and Secretary of State Chuck Gray.

Their request to intervene has been opposed by the plaintiffs.

This story was published on May 11, 2023.