Trump Nominee Wyrick Defended Executions, Abortion Regs

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By Patrick L. Gregory

Justice Patrick Wyrick was on the Oklahoma Supreme Court for less than a year before President Donald Trump added him to a list of potential U.S. Supreme Court nominees.

The former Oklahoma solicitor general joined his state’s high court in February 2017, made Trump’s list in November, and was then nominated to the U.S. District Court for the Western District of Oklahoma in April.

At 37, Wyrick is one of many young, conservative Trump nominees who could be on the bench for decades due to vacancies kept open by Senate Republicans during the Obama administration. If confirmed, he would fill a vacancy that’s been open since July 2013.

Before he became an Oklahoma Supreme Court justice, Wyrick successfully defended the state’s use of the drug midazolam in executing prisoners, arguing and winning at the U.S. Supreme Court in 2015’s Glossip v. Gross.

Like Trump nominee John Nalbandian, Wyrick will likely face questioning from Democrats about his views on abortion.

Wyrick defended Oklahoma laws requiring ultrasounds prior to abortions and restricting the use of an abortion-inducing drug. Both laws were found unconstitutional.

Another potential lightning rod could be his defense of a state constitutional amendment that prevented courts from considering Sharia law when making decisions, which was found to violate the freedom of religion under the U.S. Constitution.

If seated, Wyrick would join several other Supreme Court short-listers confirmed to district court or appeals court seats under Trump. They include Judges Joan Larsen, Amul Thapar, Don Willett, Kevin Newsom, and David Stras.

Trump also nominated short-lister and Georgia Supreme Court Justice Britt Grant to the U.S. Court of Appeals for the Eleventh Circuit on the same day he nominated Wyrick.

Wyrick declined a request for an interview.

Persuasive Writing

In Glossip, three condemned prisoners claimed that Oklahoma’s use of the sedative midazolam in lethal injections could result in excruciating pain because it didn’t reliably induce a deep level of unconsciousness. Their lawsuit followed the execution of Clayton Lockett in Oklahoma, which went poorly and lasted 40 minutes. Oklahoma temporarily suspended executions until it tweaked its protocol.

The state said in Glossip it was the fault of death penalty opponents that Oklahoma needed to use the drug midazolam, in a brief by Wyrick, who was then solicitor general.

Wyrick successfully portrayed the state as a victim of death-penalty opponents rather than a “heartless executioner,” according to a law review article by Maureen Johnson.

Oklahoma had been using a reliable drug, pentobarbital, until death penalty opponents pressured its manufacturers “to cut off supplies” so it couldn’t be used in executions, Wyrick said.

The prisoners feigned “ignorance of the very drug shortage that their supporters helped create,” while refusing “to identify a single better option,” Wyrick said.

The court ruled in Oklahoma’s favor and recounted how drug penalty opponents have sought to block access to death penalty drugs. Wyrick’s brief was an example of how the best briefs “make a compelling case on both an emotional and intellectual level,” Johnson said.

Same-Day Losses on Abortion Regs

Wyrick was less successful in his defense of two Oklahoma laws regulating abortions, both of which the Oklahoma Supreme Court found unconstitutional in separate but nearly identical decisions on the same day in 2012.

One law required women to obtain ultrasounds prior to abortions, in Nova Health Sys. v. Pruitt.

Nova Health Systems, an abortion provider, challenged the law in a suit against Wyrick’s supervisor—then-Oklahoma Attorney General and current Environmental Protection Agency Administrator Scott Pruitt—in his official capacity.

The second law restricted the use of mifepristone, an abortion drug known as RU-486, in Okla. Coal. for Reprod. Justice v. Cline.

The law said the drug could only be used in the manner that the Food and Drug Administration had approved, meaning that it couldn’t be used in combination with another drug commonly used in medication abortions.

The court found that both laws were facially unconstitutional under the U.S. Supreme Court’s 1992 decision in Planned Parenthood of Se. Pa. v. Casey.

Casey held that state regulations violate the 14th Amendment right to have an abortion if they place substantial obstacles to obtaining abortions.

The court later explained that the mifepristone restriction effectively banned “all medication abortions,” answering a certified question asked by the U.S. Supreme Court, which dismissed the dispute as improvidently granted in 2013’s Cline v. Okla. Coal. for Reprod. Justice.

Anti-Sharia Amendment

Wyrick also represented Oklahoma in a challenge to a voter-approved amendment to its constitution that prevented state courts from considering or using Sharia law, which a ballot measure defined as Islamic law based on the Koran and “the teachings” of the Prophet Muhammad.

The amendment likely violated freedom of religion under the First Amendment because it singled out law from one religion, the U.S. Court of Appeals for the Tenth Circuit held in 2012’s Awad v. Ziriax.

The court therefore affirmed the district court’s grant of a preliminary injunction as requested by Muneer Awad, who argued that the amendment would stigmatize him because of his Islamic faith.

The district court to which Wyrick is a nominee later issued a permanent injunction against the amendment, finding that the state failed to show a compelling state interest for it, in 2013’s Awad v. Ziriax.

Appointment Challenged

Wyrick’s work as Oklahoma solicitor general made him a familiar face to his state’s high court when he sought to join it.

Because “I am the most frequent practitioner before the court, I have litigated dozens of significant constitutional law cases involving most every frequently litigated provision in our state constitution,” Wyrick said in his application to become a justice.

Nonetheless, Wyrick’s appointment was challenged in a case decided by his new colleagues shortly after he joined it in 2017, Spencer v. Wyrick.

Registered voters in the district that Wyrick was appointed to represent claimed he was ineligible because he didn’t live in that district.

The Oklahoma Supreme Court dismissed the case in an unsigned opinion, finding that private parties lack standing to challenge such an appointment unless they can argue that they are entitled to the position themselves.

The case presented “the most critical issue this court has ever faced,” Justice Joseph Watt said in a partial concurrence and partial dissent.

Watt said the case should have been permitted to develop in a lower court rather than dismissed with prejudice.

Honda Sanction Invalidated

Opinions Wyrick has written for the Oklahoma Supreme Court include:

  • Am. Honda Motor Co. v. Thygesen—invalidating a sanction against American Honda Motor Company issued for its inability to provide electronic data about the design process of a vehicle at issue in a product liability suit. There was no evidence of bad faith by Honda, Wyrick wrote in 2018.
  • Naifeh v. State ex rel. Okla. Tax Comm’nstriking down a state senate cigarette tax bill in 2017 because it was a “revenue bill,” and such bills must originate in the state House of Representatives under the Oklahoma Constitution.
  • In re Hunsuckerdissenting from the court’s decision that an attorney who transferred an elderly client’s assets to himself with “next to no independent review” should receive only a public reprimand. Wyrick said the attorney should have received a six-month suspension.
Planned Parenthood receives funding from Bloomberg Philanthropies, the charitable organization founded by Bloomberg Law owner Michael Bloomberg.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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