WyoFile by Angus M. Thuermer Jr.

JACKSON—Two legislators and an anti-abortion group can’t immediately intervene in a suit that asserts a Wyoming abortion ban violates the state constitution, a district judge decided Monday.

After hearing oral arguments, Ninth District Judge Melissa Owens said she needs more time to determine whether the Republican lawmakers and a nonprofit can fully participate in a suit that has so far blocked the state from enacting the abortion ban law.

Owens heard about 40 minutes of arguments from Peter Modlin, who represented four women and two groups who challenged the Wyoming abortion-ban law, and Denise Harle, representing the legislators and Right to Life of Wyoming.

“This is an extremely difficult decision for this court,” Owens said. “I want to take my time in deciding this.”

She could issue a decision in a week or two, she said.

The challengers to the abortion ban, including Danielle Johnson, Kathleen Dow, Dr. Giovannina Anthony and Dr. Rene Hinkle, sued the state saying the 2022 abortion ban law violated Wyoming’s constitutional guarantee that individuals can make their own health care decisions. The legislators and Right to Life of Wyoming say they should be allowed to argue aspects of the issue that the Wyoming attorney general’s office is not addressing.

“They will be free to continue legislating and advocating.”

ATTORNEY PETER MODLIN

The legislators — Reps. Rachel Rodriguez-Williams (R-Cody) and Chip Neiman (R-Hulett) — were sponsor and co-sponsor of the abortion ban bill respectively.

Rodriguez-Williams is CEO and executive director of the Serenity Pregnancy Resource Center, according to LinkedIn and briefs filed in the case. As a lawmaker, Neiman had the authority to regulate health and safety as part of his office, filings state.

Right to Life Wyoming should be allowed into the lawsuit because it was the chief lobbyist for the abortion ban law, which “rises or falls with this case,” Harle said. Should courts find the law unconstitutional, all the group’s work would be futile, she said.

“Their interests may not be adequately represented” by the attorney general’s office, Harle said of her clients. No one wants this case to go up to the Wyoming Supreme Court, a perceived inevitability, “on a one-sided record.”

Concern, not an interest

But none of the proposed intervenors established a valid reason for the privileged legal status, said Modlin, one of the attorneys challenging the abortion ban law.

The proposed intervenors had a concern, he said, rather than an interest that would be affected by the case’s outcome. Lawmakers can still pass laws, regardless of the outcome of the lawsuit, he said. Right to Life of Wyoming, “their interest comes down to advocacy,” he said.

“They will be free to continue legislating and advocating,” Modlin said; the case will not impair that.

Further, the proposed intervenors have the same objective as the state, Modlin argued, and so should not be allowed to participate directly.

“What it really boils down to is because the attorney general did not introduce evidence at the preliminary injunction case, [state attorneys] cannot be trusted to represent proposed intervenors interest,” Modlin said. Disputes over litigation status are not enough to rebut the presumption that the state and the proposed intervenors have the same objective, he said.

Right to Life of Wyoming and the lawmakers sought to argue points the plaintiffs themselves raised, such as whether a decision to have an abortion is a health care decision protected by the Wyoming Constitution. Harle’s clients believe the rights to make health care decisions “do not, and never were understood, to create or protect a right to elective abortion in Wyoming,” a brief states.

Harle asked that if Owens decides the intervenors shouldn’t be allowed to participate as a matter of law, the judge should let them into the case on a permissive basis. In contrast, Modlin said the proposed intervenors can participate by filing amicus briefs. Those are legal papers that aim to help the court decide an issue but are filed by parties who cannot make direct arguments in the courtroom.