State wants expert witnesses kept out of abortion case

None of the eight proposed expert witnesses for the plaintiffs challenging Wyoming’s abortion bans should be allowed to participate in the case, a lawyer for the state argues in a new filing.

The witness list includes four of the plaintiffs, two religion experts, an OB-GYN medical expert and a well-known prosecutor in Wyoming: Michael Blonigen. All provide arguments against the bans.

In his filing, Special Assistant Attorney General Jay Jerde argues none of them should be allowed to participate or provide testimony, mainly citing Rule 702 of the Wyoming Rules of Evidence and the 10th Circuit Court case Specht v. Jensen.

In essence, Jerde states witnesses need to both provide expert-backed evidence that’s relevant to the case, but aren’t permitted to testify on “ultimate issues of law,” which he argues includes interpretation of statute language in the abortion bans.

The opinion in the Specht case states that if counsel calls lawyers as expert witnesses, and those witnesses give their own legal conclusions to the case, it may confuse jurors. However, the upcoming trial over the abortion bans is set to be decided by a judge rather than jurors.

The Specht opinion is clear, though, that not all legal opinions need to be excluded from witness testimony.

Jerde goes into more complicated legal arguments about what kinds of testimony belong in a case that mainly revolves around the question of constitutionality.

One reason Jerde cited for not allowing Blonigen’s testimony is his stated opinions that the law is vague, inconsistent and that it could harm victims of childhood sexual abuse. The state argues that Blonigen shouldn’t be allowed to express opinions on statutory language and that he is not an expert on such victims.

Technical tactics

However, this tactic of using more complex arguments to dismiss plaintiff requests hasn’t been very successful in the case up to this point.

For example, in June, plaintiffs urged 9th District Judge Melissa Owens to force the state to answer discovery questions ahead of the trial. The state said it wouldn’t answer a single question posed, arguing discovery isn’t warranted because the case involves purely legal questions — a similar argument made as to why witnesses shouldn’t be allowed.

Plaintiff questions ranged from identifying government interests for the abortion bans to defining key phrases within the bans.

On Aug. 18, Owens found that the state would still have to answer all 22 questions posed and three of the seven “requests for admission.” Owens further ruled the state wouldn’t have to answer some requests for admission related to lawmakers affiliated with the bans.

“Admit that Representative Rodriguez Williams served as Director of Serenity Pregnancy Resource Center,” posed one of the requests the state will not be forced to answer.

These questions show the plaintiffs still aim to bring up several, separate constitutional concerns, according to Robert Keiter, the author of a comprehensive review of the Wyoming Constitution and former UW constitutional law professor.

“It seemed to me that the discovery questions related directly to issues that are going to be part and parcel of the argument about the Constitutionality of this [case], both in terms of the health provision in the Wyoming State Constitution as well as the due process, equal protection provisions and the religion establishment clause provision,” he said.

Next steps

The plaintiffs can respond to the state’s claims about witnesses, and likely will in the near future.

All of these arguments are leading up to a trial, scheduled for April. In the meantime, enforcement of both abortion bans — including a near-total ban and a medication ban — have been stalled in district court. Most abortions remain legal in Wyoming.

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This story was posted on September 7, 2023.