Pro Choicers OK To Argue In Court Whether Abortion Is, Or Is Not, Health Care

The pro-choice plaintiffs suing Wyoming over its abortion bans aren’t opposing the court’s consideration of a claim by four doctors that abortion is not health care. 

“Plaintiffs do not agree with several statements and representations in (the doctors’) motion and proposed brief,” reads a Monday filing by the pro-choice coalition via its attorneys, which adds that the plaintiffs don’t take a position on whether the judge should introduce the doctors’ argument into the seven-month lawsuit against Wyoming’s abortion bans.

While they take no position on the doctors’ request to add their argument to the record, the plaintiffs are asking the court for 20 days to refute the claims after it is officially introduced. 

Filed Oct. 16, the proposed brief consists of four Wyoming doctors arguing that abortion is not health care. Those doctors are Timothy Hallinan and David M.Lind (both retired), and Michale Nelson and Samantha Michelena. 

Hallinan is a former Republican state legislator. 

The four doctors filed the brief via their attorney, Thomas Szott, of Cheyenne.

“In almost every case, an obstetrician is caring for two patients simultaneously: a mother and her unborn child,” says the proposed brief. The document calls that the two-patient paradigm, and says the plaintiffs are challenging that system of care. 

The health care debate is the crux of the pro-choice group’s lawsuit against Wyoming. The plaintiffs, which include an abortion clinic, an abortion funding group, an abortionist, another OB/GYN and two birthing age women, want the court to declare that abortion is health care and therefore a protected right under the health care autonomy amendment to the Wyoming Constitution. 

Doing so would make it harder for Wyoming to defend its two abortion bans in court — one against nearly all abortions and another against marketing and sale of drugs to cause abortions.  

Baby’s Benefit

The doctors say it’s illogical to consider abortion health care. 

“An unborn baby qualifies as an obstetrician’s ‘patient’ because the obstetrician is providing medical diagnosis or treatment to the unborn baby,” says the proposed brief. “Indeed, various medical treatments and diagnostics given or performed in pregnancy are exclusively for the unborn baby’s benefit.” 

The brief lists various tests and interventions administered throughout pregnancy, some rigorous, for the sake of the unborn. 

Gonna Tangle

The proposed brief confronts an earlier filing by the plaintiffs in which they listed statistics positing that having an abortion is a safer outcome than having a baby and therefore a viable health choice. 

The plaintiffs argued that pregnancy can lead to lower quality of life for women and heightened health risks. 

“The Abortion Ban requires pregnant individuals to face and endure these risks – an irreparable injury that only an injunction can prevent,” says the plaintiffs’ Sept. 18 filing asking the court to judge the case in their favor. 

The doctors argued back, saying that embracing the idea that abortion is automatically a safer alternative could lead to a legal landscape in which doctors are expected to perform abortions, and could be disciplined for not doing so. 

“By this reasoning, pregnancy is no different than a dangerous disease,” says the doctors’ proposed brief. “If this were a valid medical conclusion, then every competent physician would recommend abortion as a first line treatment for every pregnant woman.” 

Under Wyoming law currently, doctors are not to be disciplined for refusing to perform abortions. 

The Life Act

The doctors’ argument also strives to defend Wyoming’s Life Is A Human Right Act, which bans abortions except in cases of rape, incest and numerous medical emergencies. 

It’s not a perfect law, the proposed brief argues, but offers a “straightforward framework” for doctors in Wyoming by making allowance for their “reasonable medical judgment” and by including wording allowing for an abortion “to prevent” a substantial risk of death. 

“Because the law authorizes preventative care, a physician need not wait for a medical emergency before providing life-preserving treatment,” says the proposed brief. 

This argument is aimed at its inverse in the plaintiffs’ September filing, where the pro-choice group argued that the ban is too vague and not written in medical terms.

“Pregnancy itself carries a real risk of death,” the plaintiffs wrote. “Taken literally, the State’s definition (of abortions to prevent death) would apply to all pregnancies and allow abortion at any time up until birth.”

Carve-Outs

The doctors in their proposed brief said the Life is a Human Right Act reflects the “two-patient paradigm that governs real-world obstetrics,” that it allows for life-saving snap decisions, and that doctors can interpret its carve-outs for medical emergencies.

Teton County District Court Judge Melissa Owens has not yet ruled on introducing the proposed brief. 

Clair McFarland can be reached at clair@cowboystatedaily.com.