The Wyoming Supreme Court peppered lawyers with questions Tuesday as they mulled whether anti-abortion lawmakers and Right to Life Wyoming should be able to join the suit challenging the state’s two abortion bans.
The Wyoming Attorney General’s Office is defending the abortion bans, which lawmakers passed early this year, from a group of plaintiffs who say the laws violate the state constitution. Nevertheless, Reps. Chip Neiman (R-Hulett), Rachel Rodriguez-Williams (R-Cody) and Right to Life Wyoming asked the 9th District Court in Teton County to allow them to intervene in the consequential case, but were denied back in June.
Tuesday’s appeal hearing before the high court mirrored the trio’s original request: that the three have protectable interests — their years of anti-abortion work — and that the state wasn’t presenting enough evidence to counter plaintiffs in the case. They’re represented, in part, by the conservative Christian advocacy group Alliance Defending Freedom.
Arguing for the three parties, attorney Tim Garrison noted that the high court had already denied taking up a case involving Wyoming’s 2022 “trigger” abortion ban last December based on the “limited factual record provided.” Potential intervenors could add to that record to avoid similar court denials in the future, he said.
Justice Keith Kautz suggested Garrison was “reading into” the court’s denial more than he should, and that the justices never said there needed to be an evidentiary trial.
Justice Lynne Boomgaarden also questioned whether it may be too soon for the proposed intervenors to argue this case because the district court hasn’t decided whether the matter will go to trial.
Both the plaintiffs and the state are asking the district court in Teton County to skip a trial and issue a judgment on their behalf because they believe there are no factual issues in dispute, only legal ones. District Judge Melissa Owens is set to hear from both sides at a hearing Thursday in Jackson.
Boomgaarden added that, from what she heard in the potential intervenors’ argument, if plaintiffs get to present facts and evidence, they should, too. “And I don’t see where that’s part of the test for intervention.”
Special Assistant Attorney General Jay Jerde, defending the abortion bans on the state’s behalf, doesn’t oppose intervention, but stated in court that he believes his team is already vigorously defending the bans, relying on legislative facts it believes are most suitable to the case.
Peter Modlin, attorney for the plaintiffs in the case, argued that there’s no compelling case law to show that the proposed intervenors have a significant compelling interest in the case. The U.S. Supreme Court allowed lawmakers in Berger v. North Carolina State Conference of the NAACP, Modlin noted, but they were legislative leadership.
Beyond that, Modlin argued that a difference of opinion on how to argue the case isn’t enough to warrant intervention, especially when that intervention could “wind the clock backwards and restart this case from the beginning.”
Still, Boomgaarden asked whether it was a bit “too convenient” for the plaintiffs to be arguing against the proposed intervenors bringing evidence to the case when plaintiffs have presented evidence of their own.
Just last week, Owens decided to allow the plaintiffs’ expert witnesses in the case. She also accepted an amicus brief from a group of current and former doctors — and one former lawmaker — who outlined why they support the abortion bans.
The three proposed intervenors have not filed an amicus brief, arguing solely to be full parties to the case.
This group of three first tried to intervene last year in a suit challenging Wyoming’s first abortion ban. That involved the state’s “trigger ban,” which was set to go into effect after the U.S. Supreme Court overturned Roe v. Wade, which also happened last year.
But the same day the ban was set to begin, Owens granted a temporary restraining order — stalling its enforcement — followed later by a preliminary injunction.
The anti-abortion lawmakers and Right to Life Wyoming attempted to intervene in that case, but Owens denied their request, writing: “The court is sympathetic to the [legislators and Right to Life’s] desire to intervene in this matter … However, the [legislators’ and RTLW’s] interests do not rise to the level of a significant protectable interest under the law.”
They appealed Owens’ decision to the state Supreme Court, but that case became moot after the Wyoming Legislature passed two new bans, one of which replaced the trigger ban and the other of which targeted medications used to induce abortions.
Earlier this year, Owens stalled enforcement of both of the new bans as part of the current court case.
In April, Secretary of State Chuck Gray joined the original group of three in requesting to join the latest abortion ban case. Owens again denied the proposed intervenors for much of the same reasons as before.
The group, sans Gray, then appealed to the Supreme Court once again.
What happens next?
Wyoming Supreme Court justices will deliberate and rule on this case at a later date.
Meanwhile, the 9th District Court has scheduled a hearing Thursday where the plaintiffs challenging Wyoming’s abortion bans and the state will present their cases for why the judge should skip a trial and rule on their behalf.
Regardless of the outcome of that case, it’s expected to be appealed to the Wyoming Supreme Court. For the time being, most abortion remains legal in Wyoming.