CASPER — Though the three-day bench trial that will decide the fate of abortion in Wyoming remains months away, the contentious legal battle over the state’s two bans continues to play out in Teton County district court.
Ninth District Judge Melissa Owens ruled last month in favor of the women challenging the bans after a months-long clash over the fact-finding portion of the case, also known as discovery, forcing the state and the Wyoming Attorney General’s Office to answer questions about the laws and their meaning ahead of the trial.
Owens’ ruling represents a significant win for the women after the state refused to answer any of their questions in the first round of discovery. In legal filings, lawyers for the state argued that the court shouldn’t allow discovery, in part because the responses would be burdensome, would have no effect on the case and would tip the state’s hand ahead of trial, a line of reasoning that Owens ultimately rejected.
“The Attorney General of Wyoming is in the position to defend the constitutionality of the statues and has the resources for responding to the discovery,” Owens wrote. “The discovery directly relates to the factual basis necessary to support the claims and defenses asserted in this matter, and the burden of the discovery does not outweigh the benefit of the discovery.”
Discovery is the process by which the two sides in a lawsuit exchange information about the evidence and witnesses they will present to avoid a “trial by ambush,” according to the American Bar Association, the professional association for lawyers, law students and judges.
Lawyers for the group of medical providers, Wyoming women and the Wyoming abortion fund challenging the Life is a Human Right Act and the state’s first-of-its-kind medication abortion ban submitted their first set of questions to the state in April, shortly after filing their initial lawsuit.
The group’s 22 questions probed the state’s reasoning for the bans, as well as the meaning of language in both laws.
The lawyers asked the state to describe “each and every government interest” that the state believes the abortion bans support, as well as how the bans further those interests. Their questions drew a direct line to the Wyoming Constitution and Article 1, Section 38, which guarantees that “each competent adult shall have the right to make his or her own health care decisions.”
While Section 38 establishes the right of health care access, it does allow the Wyoming Legislature to make “reasonable and necessary restrictions … to protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution.”
In their legal challenge, the women have argued that the abortion bans violates the right of women to make their own health care decisions, while the state’s lawyers have held that lawmakers had the power and the grounds to place restrictions on the right. With their questions, the women aimed to dig into the state’s justification for the restrictions, a point of contention that will be central to the trial.
Many of the group’s other questions asked the state to explain the language of the bans and the process a doctor should go through when determining if they can legally provide an abortion. They questioned what qualifies as “a substantial risk of death” for a pregnant woman, as well what illnesses or circumstances would contribute to the “serious and permanent impairment of a life-sustaining organ of a pregnant woman.”
They also asked the state to identify what medical information and guidelines doctors should rely on when trying to make their decisions.
As part of their legal argument, the women and their lawyers have maintained that Wyoming’s abortion bans are unconstitutional because they are vague and don’t give doctors enough information to know when they can act under the exceptions.
“This information is directly relevant to Plaintiffs’ claim that the statutes are unconstitutionally vague, and also that these vague terms result in the denial of necessary health care, in violation of Section 38,” the lawyers for the women wrote in a petition to force the state answer their questions.
In addition to their questions, the attorneys also submitted seven “requests for admissions,” which ask the state to confirm a series of facts, including that Rep. Rachel Rodriguez-Williams, R-Cody, and Rep. Chip Neiman, R-Hulett, co-sponsored the Life is a Human Right Act. Most notably, they asked the state to “admit that there is no difference in the potential life of a fetus or embryo that results from incest or sexual assault compared to a fetus or embryo that does not result from incest or sexual assault.”
Both of Wyoming’s abortion bans include exceptions in the cases of sexual assault or incest.
“Since the State has claimed that one governmental purpose of the abortion statutes is to preserve potential life at all stages, this request is directly relevant to the State’s defense,” the lawyers for the group wrote in a follow-up to their petition.
The Wyoming Attorney General’s Office immediately pushed back against the discovery. In their May 31 response, lawyers for the state refused to answer any of the questions while outlining a myriad of objections.
The two sides tried to resolve the dispute, but couldn’t come to an agreement, leading the attorneys for the women to file their petition to force the state to answer their questions and the state to file a response again objecting to the questions.
In the state’s rebuttal, Wyoming Special Assistant Jay Jerde protested the requests, and argued that the state shouldn’t have to respond to any of the questions, and discovery shouldn’t take place at all. Among the state’s defenses was that some of the questions are “overly burdensome” because they ask the state to identify “all medical manuals, publications, guidance literature or educational materials” that establish medical definitions for the terms lawmakers used in crafting the bans.
Others asked the state to identify “each and every condition, illness, injury or circumstance” that could lead to a “substantial risk of death” for a pregnant woman, one of the exceptions included in Life is a Human Right Act.
“Plaintiffs have not explained how asking the State Defendants to do an excessive amount of work that will have no benefit in resolving the issues in this case in any way leads to the conclusion that the Life Act and the chemical abortion statute are not reasonable or necessary to protect the public health and welfare,” Jerde wrote.
Jerde and the Wyoming Attorney General’s Office also told Owens that the answers to some questions, specifically those about the state’s motivation for enacting an abortion ban, were protected because they would reveal the legal arguments that the state would make at trial.
“The state interests or purposes are legal determinations, not facts or opinions related to facts. At this stage of this case, that information constitutes the mental impressions or legal theories of defense counsel, so it cannot be disclosed in discovery,” Jerde wrote.
A legal debate over discovery
While he presented several reasons why the state shouldn’t have to answer each of the questions, Jerde asserted that it was all irrelevant because there shouldn’t be discovery in the case in the first place.
Jerde and the state’s stance rests on the technical, but important distinction between “facial” and “as applied” challenges in constitutional cases. In a facial challenge, a person claims that a law is unconstitutional as it is written, that is “on its face,” often because it is too vague or broad, according to the Free Speech Center at Middle Tennessee State University. Critically, a successful facial challenge strikes down the law for everyone.
In the case of Wyoming’s abortion bans, the women say that the laws, as written, violate the state’s constitution and the right to make personal health care decisions.
“They seek to have the Life Act and the chemical abortion statute declared to be wholly invalid and to prevent enforcement of the statutes against everyone who falls within the reach of the statutes,” Jerde wrote. “The breadth of their requested remedies confirms that they are asserting only facial challenges.”
Because the women are challenging the laws on their face, Owens and the court can only interpret and assess the laws as they’re written, without any added context about the purpose of the laws and how the state interprets them, according to the state.
“These interrogatories are unrelated to the facts of this case because there are no facts in this case,” Jerde wrote.
Without facts, there can be no fact finding and no discovery, Jerde asserted.
However, the women and their lawyers said that they are also challenging the bans “as applied,” meaning that the laws are unconstitutional because they also violate the personal constitutional rights of those in the group, including Drs. Giovannina Anthony and Rene Hinkle, whose OB-GYN practices would be affected by the bans.
In their response to the state, the lawyers suggested that the state is attempting to “conceal” information that the group needs to prepare for trial and that the court will ultimately need to decide the case. “In short, the State seeks to engage in trial by ambush,” they wrote.
After roughly four months of legal battles, Owens soundly rejected the state’s objections in an Aug. 16 decision, finding that the state must overwhelmingly respond to the questions of the women and their legal team by Sept. 6.
In some cases, Owens narrowed the questions, while she threw out four of the seven requests for admissions. However, her most significant decision was ruling that the women have established both facial and as applied challenges to the bans.
“The Amended Complaint seeks declaratory relief supported by factual allegations that allege the statutes are unconstitutional because they prohibit the individual Plaintiffs from engaging in conduct that is protected by the Wyoming Constitution and are too vague for the Plaintiffs to properly interpret,” Owens wrote.
In legal filings, the attorneys for the women said the state’s attempts to block discovery were telling, especially in light of their request that the state “admit that there is no difference in the potential life of a fetus or embryo that results from incest or sexual assault compared to a fetus or embryo that does not result from incest or sexual assault.”
“It is understandable that the State does not wish to answer this request,” the lawyers wrote. “If it is truthful, as is required, it must admit the request, thereby also admitting that the statutes do not further the asserted interest in protecting potential life.”
The three-day bench trial that will decide the fate of abortion in Wyoming — barring an appeal to the Wyoming Supreme Court — will begin in Teton County District Court on April 15.