By Dylan Farrell
Casper Star-Tribune
Via- Wyoming News Exchange

CASPER  —- Two days after a hearing on abortion advocates’ request to temporarily block Wyoming’s latest abortion ban, Natrona County District Court Judge Daniel Forgey granted the plaintiffs’ motion—partially.

The Friday order, provided to the Star-Tribune by an attorney involved in the case, partially grants the motion for a temporary restraining order and blocks enforcement of eight sections of the statute.

Those eight sections cover the entirety of article four of HB 126, titled the Human Heartbeat Act, which was passed by the Wyoming Legislature this year. 

Forgey’s order did not block article five of the Act, which includes a trigger provision banning abortion after fetal viability, with only narrow exceptions.

Viability was a central point of discussion at Wednesday’s hearing on the motion for a TRO, with both sides addressing it extensively. The state repeatedly cited—both in court and in filings—the U.S. Supreme Court’s majority opinion in Dobbs, which partially said that “the viability line makes no sense.” 

The gallery at the hearing on the motion was noticeably fuller than is typical for a civil motions hearing—even compared to another abortion case between the same parties just over three weeks earlier. More than 20 attendees watched as the now-familiar attorneys for both sides argued their positions.

At the plaintiffs’ table on the right side of the courtroom sat attorneys Peter Modlin, John Robinson, and Marci Bramlet.

The trio represents a larger group of plaintiffs that includes lead plaintiff Danielle Johnson—making her the case’s fourth namesake—as well as Circle of Hope Health Services, known in Casper as Wellspring Health Access, Wyoming’s only abortion clinic.

To their left, Attorney General Keith Kautz, Donovan Burton, and Jenny Craig represented the state.

Also present was Casper City Attorney Eric Nelson, who sat at a table behind Kautz and the other state defendants. Nelson told the judge he was attending as an observer on behalf of the city and did not intend to participate in the proceedings.

The city of Casper is named as a defendant in the lawsuit, but because it neither drafted nor enacted the law, its participation was not required.

The plaintiffs, represented Wednesday by Modlin, asked the judge to issue a temporary restraining order against the state, arguing that their patients seeking abortions would suffer “irreparable harm” and that their case is likely to succeed on the merits.

The latter argument rested largely on three claims: that the Wyoming Supreme Court had already addressed the issues in its January ruling overturning prior restrictions; that the new law is unconstitutionally vague; and that the state not only failed to demonstrate a “compelling interest” in enacting the legislation, but failed to clearly define one at all.

The state disagreed.

Kautz, who appeared in person Wednesday, advanced that position during the state’s oral arguments, though he was not the primary author of the defendants’ brief opposing the motion.

To obtain injunctive relief or a temporary restraining order, a moving party must show either that it will suffer irreparable harm if the law is enforced during the proceedings, or that it is likely to succeed on the merits of its case. In Wednesday’s arguments, both sides claimed they satisfied those standards.

“[In cases] where fundamental rights are concerned, the presumption is that there will be irreparable injury,” Modlin said. 

Kautz argued that the state and the people of Wyoming would suffer significantly greater harm than their opponents, whose concerns he largely downplayed.

“Some of them may not be able to charge for as many abortions,” he said of the plaintiffs, prompting a woman in the gallery to scoff. 

He pointed to figures from an earlier Wellspring filing showing that, between the law’s enactment and the filing of the most recent complaint, the clinic was unable to provide an average of 1.6 abortions per day.

Extrapolated to the date of the hearing, “That amounts to 51 babies that weren’t killed by abortion,” Wyoming’s attorney general and former supreme court justice said. 

 

Litigious background 

The ongoing challenge to HB 126 is known as Johnson IV, being the fourth in a series of cases in which lead plaintiff Danielle Johnson challenged Wyoming’s abortion laws. 

Johnson I challenged a trigger law that took effect after the U.S. Supreme Court’s Dobbs decision overturned Roe v. Wade. That case was largely rendered moot after the Wyoming Legislature passed new legislation shortly thereafter.

Johnson II was filed in 2023 to challenge the Life is a Human Right Act. The case was appealed to the Wyoming Supreme Court, which upheld a lower court’s ruling permanently blocking the law.

In its opinion, the justices found that the laws violated Article 1, Section 28 of the Wyoming Constitution, which guarantees the right to make healthcare decisions free from “undue government infringement.”

Johnson III was filed in 2025 to challenge three laws referred to by plaintiffs as the “Criminal TRAP Laws.” The statutes banned prescribing medication “for the purpose of inducing an abortion,” imposed new regulations on abortion clinics that plaintiffs say would effectively shut down Wyoming’s only such facility, and required a mandatory ultrasound and 48-hour waiting period for patients seeking abortions.

Johnson IV was filed in late March after a motion to add HB 126 to the prior complaint was denied by specially appointed Judge Thomas T.C. Campbell. He found that including the new law would prejudice the state defendants, given the differences in the anticipated defense.

“We are grateful for today’s decision, which enables Wellspring Health Access to resume abortion care services at full capacity. For nearly two months, this deeply harmful abortion ban has greatly reduced our ability to provide care to people in Wyoming – with many forced to travel out of state to get the care they need and others having to delay their appointments or cancel them altogether,” Julie Burkhart, Wellspring’s president, said in an emailed statement Friday evening. “No one should have their health care disrupted because of lawmakers seeking to take away their rights. We know this fight is only just beginning, and we will continue to defend against all threats to reproductive freedom in Wyoming.”

 

The order

Forgey’s order, provided to attorneys late Friday afternoon, addressed two key factors: the plaintiffs’ likelihood of success on the merits as argued Wednesday, and the risk of “irreparable harm” to the plaintiffs if the law were allowed to be enforced.

In both cases, “the court [found] that the plaintiffs have on this record made a sufficient showing” that they would be wronged.

Forgey also noted the plaintiffs’ arguments regarding the state’s asserted compelling interest.

He quoted the plaintiffs as arguing that the law “effectively [prohibits] the termination of pregnancy (absent very narrow exceptions) once embryonic ‘cardiac activity’ becomes ‘detectable.’”

At the motion hearing, Modlin argued—among other points—that the state had failed to establish a material compelling interest, pointing to inconsistencies between its stated goal of protecting unborn life and the position of one of its own experts, who wrote in a statement that abortion laws based on “level of [fetal] development” were “associated with barbaric regimes.”

“If prenatal life has value, then the statute is underinclusive,” Modlin said. 

The state argued that, in light of the Johnson II ruling, it was required to draw a line somewhere in fetal development and contended that using viability as the threshold “makes no sense.”

A heartbeat, they said, was objective. 

The plaintiffs disagreed, arguing that the statute’s required method for detecting a heartbeat—an ultrasound—can register cardiac activity well before the fetal heart is fully developed.

Forgey was also swayed by the plaintiffs’ claims of irreparable harm, which contended that the statute would violate “several constitutional rights.” 

“What makes an injury ‘irreparable’ is the inadequacy of, and the difficulty of calculating, a monetary remedy after a full trial. Any deprivation of any constitutional right fits that bill,” Forgey wrote, citing a 2019 federal court decision. 

 

Collateral estoppel

A key issue both parties focused on heavily during Wednesday’s hearing was collateral estoppel.

In a nutshell, the Cornell Legal Information Institute says the principle of collateral estoppel states that a party can’t re-litigate an issue that has already been decided. 

In the context of Wednesday’s hearing, the plaintiffs essentially accused the state of attempting a civil-procedure form of double jeopardy, arguing that it was relitigating issues—particularly its asserted compelling interest in protecting the lives of “unborn babies”—that had already been addressed in Johnson II, which the Wyoming Supreme Court decided in favor of abortion providers in January.

The plaintiffs also argued that their remaining claims on the merits—including vagueness and lack of narrow tailoring—had already been resolved, contending that the issues were sufficiently similar to those in Johnson II that it would be improper to relitigate them in Forgey’s court.

Kautz countered by arguing the state had used the Johnson II opinion to write the statute and that the mere similarity of the plaintiffs’ allegations didn’t make the facts of the case similar enough. 

“The fact is, we’re relying on Johnson,” he told the judge. “The Supreme Court gave us a roadmap. A very good roadmap.” 

That claim was echoed in the text of HB 126, which specifically mentioned the Johnson ruling in its first section. 

“In State v. Johnson, the Wyoming supreme court acknowledged that the state has an interest ‘in protecting the life that an abortion would end,'” the second subsection indicated. 

He also quoted a paragraph from the decision where the state’s highest court writes “we need not decide in this case whether the state has a compelling interest … because even if we assume the state has such an interest, it has not met its burden of showing the abortion laws are tailored to serve that compelling interest.” 

Although that language appears to favor the plaintiffs on the issue of collateral estoppel, the preceding sentence also notes that “the state offers very little evidence or authority in support of this broad conclusory statement” regarding “preserving prenatal life at all stages of development.”

 

Trigger provision

Article five of HB 126 contains an entirely separate restriction on abortion that states it “shall be effective only if a court has enjoined the enforcement or applicability of” article four of the law. 

The law bans abortions past the point of fetal viability with exceptions for conditions that “substantially” endanger the mother’s “life or health.” 

It also requires physicians to extend “commonly accepted means of care that would be rendered to any other infant born alive” if a fetus survives an abortion after viability has been reached. 

It also establishes a process for minors seeking abortions that requires notification and consent from a legal guardian, along with a lengthy list of exceptions.

To obtain an abortion without written consent from a parent or guardian, a minor would have to petition a judge for authorization in juvenile court, where the court would also inform the minor of the potential consequences of the procedure.

It also requires providers to inform the minor “of the opportunity to” view and listen to an ultrasound.

The above story may be used ONLY by members of the Wyoming News Exchange or with the express consent of the newspaper of its origin.