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Judge blocks Wyoming abortion ban, but providers still face uncertainty

Abortion rights protesters chant slogans during a gathering to protest the Supreme Court's decision in the Dobbs v Jackson Women's Health case on June 24, 2022 in Jackson, Wyoming. 

(Photo courtsey of Natalie Behring)
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Abortion rights protesters chant slogans during a gathering to protest the Supreme Court's decision in the Dobbs v Jackson Women's Health case on June 24, 2022 in Jackson, Wyoming.

Anticipating that the U.S. Supreme Court would overturn protections for abortion nationwide, Wyoming state lawmakers in March passed an abortion ban that would take effect when the decision came down.

When that happened in June, the president of Wyoming Right to Life Marti Halverson called it a great day for her movement.

“We just couldn't contain ourselves. We were exuberant,” she said. “Computers were smoking with emails and posts on social media. We were just exuberant.”

The mood was different at the only clinic currently performing medical abortions in Wyoming: the Women’s Health Center and Family Care clinic in Jackson. Dr. Giovannina Anthony, an OB-GYN there, said they started getting panicked phone calls from patients.

“Can you imagine you have an abortion scheduled and you have no idea now that you've heard the news that it's illegal,” she said. “Am I going to be able to get this procedure? What can I do? What can I do?”

Last week, Wyoming Gov. Mark Gordon signed the law making all abortions illegal except to preserve the health of the mother or in the case of incest or rape.

But Anthony said there’s a lot of gray area in the legislation. Verifying if someone has been sexually assaulted, for example, is challenging. The burden of proof is also on the patient. If she gets it wrong, Anthony faces up to 14 years in prison.

“I am not an investigator of a crime, and I would feel that in order to preserve my practice and my ability to care for other people, I would have to refer that person elsewhere,” she said.

After Gordon signed the abortion ban, Anthony moved up six appointments to try to get them finished before it was supposed to go into effect. Last year, she said her clinic performed 162 abortions.

“If here in the trenches, I can see individual women and help make their lives better and preserve their options and help them continue to have healthy families, then that's enough,” Anthony said.

Last week, several providers and pro-abortion rights groups joined a lawsuit arguing that Wyoming’s ban violates the state constitution, which specifically protects people's rights to make their own healthcare decisions.

According to University of Wyoming law professor Ken Chestek, the word “healthcare” is not defined in the state constitution. When that’s the case, the so-called “dictionary” definition of the term is interpreted by a judge.

“Reproductive freedom is very clearly in my mind, it's a healthcare choice. I can't think of anything else that it could be considered,” Chestek said. “The health of the mother is clearly always at stake at any pregnancy.”

On Wednesday, state judge Melissa Owens found that argument compelling enough to delay enforcement of the ban until the lawsuit is heard. During proceedings, she also said there could be “irreparable harm” to patients and providers if pregnancy-related procedures need to be delayed in the short-term due to legal uncertainty.

Those representing the state, however, argue abortion isn’t explicitly mentioned in the Wyoming constitution and thus isn’t a “right” that can be infringed upon. They also said that the new ban doesn’t outlaw abortion – it just prevents the procedure from occurring in the Cowboy State.

If Owens rules that Wyoming’s ban is unconstitutional, abortion opponents could try to amend the state constitution. Wyoming’s legislature is conservative and anti-abortion, but the process could still take years and will need support from state citizens via a ballot measure.

Wyoming Right to Life’s Halverson hopes that doesn’t have to happen. “You can throw all the ‘what if?’ at me that you want, but our position is it is never necessary.”

She wants the state to ban two common drugs used for abortion in telehealth services, as well as eliminate the current law’s exceptions for rape and incest.

“We're not trying to force our beliefs on anybody else,” Halverson said. “We're just glad the mood is trending the way it is in this state and many other states.”

Regardless of what happens, it’s still challenging and expensive to get an abortion in Wyoming. If Anthony’s clinic in Jackson closes, the nearest provider could be at least a six-hour drive away in Colorado for some people.

Julie Burkhart is trying to open a new clinic to provide abortion care in Casper, which is Wyoming’s biggest city and sits in the center of the state. But in June, an arsonist torched the building.

“It was devastating that someone would break into a business that has legal standing and would set it on fire,” Burkhart said.

No one has been arrested yet. Burkhart said she’s used to the violence and vandalism that comes in her line of work. Her former boss, Dr. George Tiller, was assassinated in Kansas in 2009 by an anti-abortion extremist.

Violent attacks against anti-abortion groups, including at churches and advocacy centers, have also been reported across the country this summer.

Despite the vitriol often associated with opening a new clinic, Burkhart plans to open the Casper facility in the next four to six months. She’ll offer multiple services, including gender-affirming care, and, if it’s legal, abortion.

“I don't believe that we can call ourselves free as a people if we are in the business of oppressing certain populations in our society,” Burkhart said.

The next hearing on Wyoming’s abortion ban is scheduled for Aug. 9. Utah, Idaho and North Dakota have new abortion bans, too, and all of them are being challenged in courts.

This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Boise State Public Radio in Idaho, KUNR in Nevada, the O'Connor Center for the Rocky Mountain West in Montana, KUNC in Colorado, KUNM in New Mexico, with support from affiliate stations across the region. Funding for the Mountain West News Bureau is provided in part by the Corporation for Public Broadcasting.

Copyright 2022 Wyoming Public Radio. To see more, visit Wyoming Public Radio.

Will Walkey