By Jasmine Hall
Jackson Hole News&Guide
Via- Wyoming News Exchange

JACKSON — The day after a Teton County judge struck down two Wyoming abortion bans as unconstitutional, Gov. Mark Gordon signaled that he’s ready to appeal the ruling to the Wyoming Supreme Court.

Teton County Judge Melissa Owens imposed a permanent injunction Monday on the “Life is a Human Right Act” and a medical abortion ban after concluding that the laws violate a state constitutional amendment protecting the rights of adults to make their own health care decisions.

Gordon called the decision “frustrating” and said he has directed Attorney General Bridget Hill to review the ruling and prepare an appeal to the Wyoming Supreme Court.

“Still this is just one of the steps in the judicial process,” the governor said in a statement. “Regardless of her decision, it was clear there would be an appeal. I remain committed to defending the constitutionality of this law and the sanctity of life.”

Gordon appointed Owens to be the district court judge for Teton County after the retirement of Timothy Day three years ago. He said in a statement on her appointment that Teton County was blessed to have three phenomenal candidates.

“However,” he said, “Melissa’s breadth of experience made her uniquely suited for the job.”

She took the bench in January 2022.

The Wyoming Freedom Caucus, an anti-establishment faction of the Republican Party that took the majority in the House this election cycle, placed part of the blame for the ruling on Gordon. Leaders in the House caucus and its Senate allies have spearheaded the abortion bans in recent years.

“We are sickened by the decision out of Teton County today,” the caucus posted to Facebook on Monday night. No official comment was provided to the Jackson Hole News&Guide. “Contrary to Gordon’s radical judicial appointees and the talking points of Kamala Harris, killing a defenseless human being is NOT healthcare, and judges don’t get to legislate from the bench.”

The quick action by the governor’s office came as no surprise to Dr. Giovannina Anthony, a Teton County obstetrician and gynecologist who provides medical abortions. Anthony is a plaintiff in the case alongside other women, health care professionals and nonprofits supporting access to and offering abortion services.

It took a while to set in, but she said Tuesday morning that she was celebrating the decision nearly a year after the case was heard in District Court in Jackson. The ruling validates a core value of Wyomingites, she said, that people should have control over their health care decisions.

Anthony has been anxiously awaiting the ruling and hoping it would keep abortions legal in Wyoming, she said, “but you can’t predict the future.”

“I think we’re anxious to get it to the next step with the current Supreme Court,” Anthony said, noting she doesn’t know the timeline for an appeal. “The sooner she made the ruling, the sooner we knew the state would appeal and move it to the next level.”

Owens tried to get the high court to weigh in sooner. She sent 14 questions to the Wyoming Supreme Court to answer in March. But the justices declined, sending the case back to Owens in April, arguing that “a ruling from the district court could refine and narrow the issues this court will be called upon to determine.”

Anthony wants the state’s high court to weigh in because she is seeking an end to a “continuous revolving door of new bills” coming from the Legislature.

“It costs the taxpayers money for the state to defend these laws, and it is certainly expensive for us to maintain the legal scenario,” she said.

This is the second round of legislation Anthony has challenged alongside advocates for abortion access. She fought the abortion trigger ban bill that was passed by the Legislature in 2022 and went into effect after the U.S. Supreme Court overturned Roe v. Wade that summer. Owens granted a temporary restraining order blocking that ban in July 2022, six months into her appointment, after concluding that Anthony and her patients faced “possible irreparable harm.”

Owens made a similar argument in her 35-page summary judgment issued Monday, stating that injunctions are “appropriately issued when a threatened harm is irreparable and there is no adequate remedy at law.”

But the greater basis for her decision is that the two laws in question violate the Wyoming Constitution.

“The court concludes that the abortion statutes suspend a woman’s right to make her own health care decisions during the entire term of pregnancy and are not reasonable or necessary to protect the health and general welfare of the people,” the ruling states. “The restriction begins even at the earliest stages of embryonic development, makes no distinction between a zygote and a fetus, and makes no distinction between a pre-viable and viable fetus.”

The constitutional protection dates back 12 years, when Wyoming citizens voted to change the Constitution and adopt the “right of health care access” amendment, “which explicitly protects the right of competent adults to make their own health care decisions and to directly pay their health care providers for health care services.”

In the historical and procedural background portion of the order, Owens notes that the amendment appeared to be a response to the passage of national legislation known as the Patient and Protection Affordable Care Act, or ACA.

She wrote that the defendants, including the governor, attorney general, Teton County sheriff and Jackson police chief, didn’t establish a “compelling governmental interest to exclude pregnant women from fully realizing the protections afforded by the Wyoming Constitution during the entire term of pregnancies.”

“No other person can make that decision for a competent pregnant woman,” Owens wrote. “To adopt defendants’ argument the court would have to rewrite the health care amendment.

“Further, the health care amendment does not include the caveat that it only applies to health care decisions ‘that do not affect others’ or that it applies to medical decisions ‘as long as those medical decisions do not involve abortions.’ The defendants’ interpretation would require the Court to construe the health care amendment to include words and language that were not included by the drafters. Such constitutional construction is impermissible.”

More than 75% of Wyoming voters supported the health care amendment in 2012, according to the Wyoming Democratic Caucus. The caucus sent out a statement championing the right to make health care decisions.

State lawmakers representing Teton County mostly celebrated the ruling.

“Making your own health care decisions means being able to get care without confusing, harmful mandates from the state that risk your health and even your future ability to raise a family,” House Minority Floor Leader Mike Yin, D-Jackson, said.

Rep. Liz Storer, another Teton County Democrat, added: “Abortion bans take away personal freedom and put women’s lives in danger. In other states, we’ve seen these bans cause unnecessary deaths and make it harder for a woman to become pregnant in the future.”

Debates on abortion are expected to return to the statehouse when the Legislature convenes in January.

Sen. Tim Salazar, R-Riverton, told Politico last week that he plans to introduce model legislation “requiring any doctor who prescribes abortion pills to be responsible for disposing of the fetal tissue — mandating that patients taking the drugs at home collect and return it in medical waste bags rather than flush it down the toilet.”

He said lawmakers need to determine whether chemicals used for abortions are getting into Wyoming’s drinking water.

Abortion rights have gone back and forth in the Legislature for years now.

“Who knows what this session will bring,” Sen. Mike Gierau, D-Jackson, said of the litany of abortion bills. “My hope is we can understand that these knee-jerk reactions are not helpful. In Wyoming, these abortion bills have led to a loss of OB-GYNs all across our state. Fear of breaking these laws and not being able to get patients the care they need have put all new moms at risk. We need to have a real conversation, then we can move forward.”

Sen. Dan Dockstader, R-Teton/Lincoln, said he was the lone holdout in the Teton County delegation and “remains with my original support of pro-life legislation both in the past and in the upcoming legislative sessions.”

Rep. Andrew Byron, the other Republican in the delegation, didn’t respond for comment by press time.

Anthony is waiting to see if the Legislature will introduce more legislation such as Salazar’s bill, which she viewed as “unreasonable and irrational.”

Staunch pro-life advocates such as the Wyoming Freedom Caucus, Majority Floor Leader Chip Neiman, R-Hulett, and Wyoming Right to Life President Marti Halverson didn’t respond to requests for comment by press time.

The state Democratic Caucus said it remains concerned that GOP lawmakers continuing efforts to interfere in health care will drive medical professionals out of the state, making it difficult to retain young families.

“To protect safe pregnancies and give clear rules for doctors, Wyoming Democrats will bring back the Wyoming Reproductive Freedom Act in the 2025 legislative session,” according to the caucus. “This bill will help ensure that everyone, including pregnant women, can make their own health care decisions.”