Wyo. Secretary of State joins legal fray over abortion

JACKSON – A group of intervenors hoping to defend Wyoming’s new abortion ban has grown from three to four, with Wyoming Secretary of State Chuck Gray joining two lawmakers and an anti-abortion advocacy group.

The intervenors are arguing that the Attorney General’s Office is offering “inadequate representation” for their interests by defending the ban on “legal grounds alone” and that allowing them to introduce evidence will expedite the case.

The proposed intervenors — state Rep. Rachel Rodriguez-Williams who sponsored the ban, R-Cody; state Rep. Chip Neiman, R-Hulett; Right to Life of Wyoming; and Secretary of State Chuck Gray — have asked to become parties to the case. They cite their desire to protect women and unborn children, as well as legislators’ right to create laws and the advocacy group’s right to protect its advocacy efforts.

The plaintiffs — two obstetric physicians, two nonprofits that provide abortion services, an emergency room nurse and a Jewish woman who argues the ban violates her faith — filed the suit March 15 before the bill became law. The plaintiffs are suing the state, Gov. Mark Gordon, the AG and Teton County law enforcement agencies, which would enforce the ban.

In the lawsuit, the plaintiffs requested a temporary restraining order, which Teton County District Judge Melissa Owens granted after a March 22 hearing, keeping abortion access legal until the full case is decided.

The proposed intervenors for the defense stated in an April 6 filing that regulating abortion was within their authority.

“Until the U.S. Supreme Court created a federal constitutional right to abortion in Roe v. Wade, abortion was consistently a matter of legislative oversight in Wyoming and was not permitted except to save the life of the mother,” the intervenors stated in court documents.

The proposed intervenors also argued they were not being adequately represented by Special Assistant Attorney General Jay Jerde, who has been defending the ban on behalf of the state.

“The U.S. Supreme Court has confirmed that intervention of right is warranted where, as here, a proposed intervenor has raised ‘sufficient doubt about the adequacy of representation’.” the filing states.

Allowing their intervention would expedite the case, the intervenors argued, as they would help complete the factual record for District Court as well as the Wyoming Supreme Court, ultimately assisting the higher court in rendering a “fully informed decision on the merits.”

During the March 22 hearing in District Court, both attorneys and Owens noted how the Wyoming Legislature had effectively restarted the clock on the court case. By passing a new ban to replace the trigger ban — so called because it was triggered when the U.S. Supreme Court overturned Roe v. Wade — the Legislature rendered the original case moot.

That sent both sides back to court to restart their arguments.

At the March 22 hearing, the plaintiffs argued that the revamped ban remained unconstitutionally vague and violated Wyomingites’ constitutional right to make their own health care decisions.

If allowed to join the case, the proposed intervenors stated that they would introduce evidence to counter the plaintiffs’ arguments that abortion is health care, as well as numerous other claims involving vagueness, religious freedom and equal protection.

The four proposed intervenors are represented by Cheyenne attorney Frederick Harrison and attorney Denise Harle, who works for a faith-based legal advocacy nonprofit in Georgia, the Alliance Defending Freedom.

In a memorandum accompanying their motion to intervene, Harrison and Harle stated that the proposed intervenors had an interest in protecting legislative authority, while Right to Life of Wyoming had an interest in ensuring that its advocacy efforts were “fully defended and vindicated.” Gray cited his years of championing pro-life legislation, which voters knew when he was elected Secretary of State, the documents state.

In 2020, while Gray was a state representative for Natrona County, he passed a budget amendment that prevented taxpayer dollars from funding elective abortions through University of Wyoming health care plans.

Last July while running for office, Gray decried Owens’ decision to halt enforcement of the now-defunct trigger ban, calling it a “liberal activist decision that is inconsistent with our values.”

“The people of Wyoming elected Secretary Gray as a statewide constitutional officer after a legislative career advocating for pro-life policies,” the motion to intervene states. “The Wyoming Secretary of State is statutorily obligated to preserve all the public records, documents, acts and resolutions of the legislatures of the… state of Wyoming.”

Gray stated that as the custodian of legislative acts, as the first in line to succeed the governor as chief executive of the state, he had a “unique interest in preserving and enforcing the will of the people… as duly enacted by their representatives in the Legislature.”

Chief at issue for both attempts at banning abortion — last year’s now-defunct trigger ban and the 2023 “Life is a Human Right Act” — is whether abortion qualifies as health care and is protected by the Wyoming Constitution.

Legislators added language to the 2023 law that states “abortion is not health care; abortion is the intentional termination of the life of an unborn baby.”

Gordon allowed the bill to become law without his signature, stating he believed a constitutional amendment might be needed to make abortion illegal. In issuing her temporary restraining order, Owens stated lawmakers had overstepped by “declaring that abortion is not health care,” which took away from “the duty of this court to decide constitutional questions of law.”

In making their case that Jerde’s defense did not suffice, the proposed intervenors pointed to a moment in the March hearing when the special assistant attorney general said he disagreed with “just about everything” one of the plaintiff’s attorneys had said but declined to refute those statements point-by-point because it was late in the day.

The group also took issue with the state defendants’ decision not to introduce evidence at the latest hearing on a temporary restraining order or in the prior case.

“Unless the proposed intervenors are granted intervention, there may not be any rebuttal evidence on the record to counter the harms, vagueness and health care decision-making arguments raised by the plaintiffs,” the court filing states. “This evidentiary gap bolsters the conclusion that the attorney general will not make all the arguments proposed intervenors will.”