Judge Says Pro-Life Doctors Can Argue Abortion Is Not Health Care

A Teton County judge is allowing four pro-life doctors to argue in court that abortion is not health care.  

Judge Melissa Owens filed an order last week allowing Wyoming Drs. Timothy Hallinan and David M. Lind (both retired), and Drs. Michale Nelson and Samantha Michelena to file an amicus brief in a lawsuit seeking to overturn the Wyoming’s two abortion bans.  

Owens filed a separate order saying she will also take judicial notice of public documents that matter to the pro-choice plaintiffs in the case. Those include parts of the Texas health and safety code, prior court cases, Wyoming’s annual abortion counts and a national crime victimization survey by the U.S. Department of Justice. It also includes the original draft of House Bill 152, the Life is a Human Right Act, which after many changes passed without the governor’s signature earlier this year and has been temporarily suspended by Owens as the lawsuit against Wyoming’s abortion bans continues.

These arguments and documents are becoming part of the case record just two weeks ahead of a Dec. 14 hearing on both the plaintiffs’ and the state’s arguments for summary judgement. Both the state and the pro-choice plaintiffs have asked Owens to judge the case early in their favor, respectively.  

About Health Care 

Filed Oct. 16, the pro-life amicus brief consists of four Wyoming doctors arguing that abortion is not health care, and that the plaintiffs’ ideas about obstetrics would impose a one-patient paradigm, rather than an obstetrician’s concern for two patients in a pregnancy, and radically change health care in Wyoming.   

“In almost every case, an obstetrician is caring for two patients simultaneously: a mother and her unborn child,” says the brief, which is now part of the case record.  

The doctors’ brief says 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.  

The Constitution’s Health Care Promise 

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 the marketing and sale of drugs to cause 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.” 

The Vagueness Argument 

Though the plaintiffs didn’t oppose Owens’ admitting the amicus brief, they launched an argument against it last week.  

They said the amicus brief acknowledged abortions should be available whenever they are “medically advisable.” 

“But the abortion ban unambiguously prohibits ‘medically advisable’ abortions unless they qualify for much narrower and ambiguous exceptions,” reads the plaintiffs’ argument. “The amicus brief therefore confirms that the law requires physicians to violate the medical standard of care.” 

Whether the abortion ban carves out specific-enough exceptions to let doctors do their jobs is another key argument in the plaintiffs’ lawsuit. They are claiming the abortion ban is unconstitutionally vague.  

One, Or Two Patients 

The plaintiffs’ argument rebukes the doctors’ distinction between the one-patient and two-patient paradigms in obstetrics/gynecology, calling it a “nonexistent dichotomy” stashed in “nothing more than a political manifesto masquerading as a medical doctrine.”  

The argument claims it is the pro-life doctors, not the plaintiffs, who are advocating “for a radical change” in the field by changing a status quo that existed for 50 years under Roe vs. Wade.  

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