A section of the state constitution that enshrines Wyomingites’ rights to make their own health care decisions does not apply to a woman’s decision concerning an abortion, attorneys for the state argued in their long-awaited appeal to the Wyoming Supreme Court.
Gov. Mark Gordon indicated in November the state would pursue the case up to the high court after a Teton County judge ruled two abortion bans passed by state lawmakers were unconstitutional. At the time, the governor said it was always clear the bans would land in front of the state’s high court.
In 2023, the Legislature passed two abortion bans, one a broad prohibition on abortions outside of cases of sexual assault, incest or when the mother’s life is at risk, and another ban targeted at medication-induced abortions. A group of women, doctors and an abortion clinic sued over both laws, which have been on hold since 2023 as litigation winds through the court system.
Monday’s filing, authored by Wyoming Special Assistant Attorney General Jay Jerde, laid out the state’s case for the five justices.
The Wyoming Supreme Court case will likely focus on Article 1 Section 38 of the state constitution, which reads: “Each competent adult shall have the right to make his or her own health care decisions. The parent, guardian or legal representative of any other natural person shall have the right to make health care decisions for that person.”
Lawmakers introduced a measure establishing the clause during the 2011 legislative session, and voters overwhelmingly passed the constitutional amendment in 2012. The Legislature was driven by conservative concerns about President Barack Obama’s signature health care program, the Affordable Care Act.
Interpreting the amendment
Opponents of the Wyoming Legislature’s bans have said that the right to make one’s own health care decisions includes a right to the medical procedures of an abortion. Legal experts have suggested the amendment provides abortion protections, but until now it has never been tested in court. Plaintiffs won a victory in November, when Teton County District Judge Melissa Owens ruled the amendment protected abortion access.
The state maintains Owens misapplied the constitutional provision.
“Nothing in the history surrounding the ratification of section 38 even remotely suggests that the Wyoming legislature and the voters intended for section 38 to codify the abortion right … in the Wyoming Constitution,” Jerde wrote in Monday’s filing.
If the constitution does not establish abortion as a right in Wyoming, then it’s the purview of the Legislature to regulate it, Jerde continued.
“The district court ran roughshod over the doctrine of separation of powers when it declared the Life Act and the chemical abortion statute to be unconstitutional,” he wrote, calling on the justices to reverse Owens’ decision.
A University of Wyoming poll conducted in November found around 31% of the state supports an abortion ban like the one passed by the Legislature while 10% would go further still and ban abortions in all cases, even those in instances of sexual assault or incest. Another 19.7% want to see abortions allowed but only after a need has been “clearly established.” Nearly 40% said abortion should remain a personal choice.
In his appeal, Jerde reached all the way back to laws written when Wyoming was still a territory, noting that the state’s founding statutes explicitly regulated against abortions. Until the U.S. Supreme Court ruled in January 1973 that the U.S. Constitution protected a woman’s right to an abortion, in the once-foundational Roe v. Wade case, it was the law of the land in Wyoming that abortions were illegal, Jerde wrote.
After Roe v. Wade, the Wyoming Legislature stayed consistent in its opposition for decades, passing budget footnotes prohibiting state funds from paying for abortions and seeking to regulate against abortions to the extent permissible under the then-Supreme Court precedent.
In early 2022, the state Legislature passed a “trigger ban,” anticipating the overturning of Roe v. Wade by the new conservative-leaning Supreme Court. That overthrow came in June of that year. Gordon signed that trigger ban into law, but it was quickly blocked in the courts. The Legislature in 2023 replaced it with the surgical and chemical abortion bans.
More restrictions
Lawmakers aren’t waiting on the court in their drive to make abortions difficult if not near-impossible to legally procure in Wyoming. The Wyoming House, dominated by the conservative Freedom Caucus, has been moving bills to further restrict the practice, like House Bill 42, “Regulation of surgical abortions” and House Bill 64, “Chemical abortions-ultrasound requirement“.
Those bills are awaiting action in the state Senate.
Proponents touted both bills as measures to protect patient safety. But last week, the debate broadened after Speaker of the House Chip Neiman stated the bills were designed to make pregnant women second guess their abortion decisions, and ultimately an attempt to prevent them. Rep. Karlee Provenza, D-Laramie, challenged the Freedom Caucus to try and amend the constitution by asking voters to prohibit abortion, since that’s one of the group’s key goals.
It’s too late for lawmakers to propose a constitutional amendment this session.
Meanwhile, plaintiffs in the case have 45 days to respond to the state’s appeal, at which point the Supreme Court could set a hearing to hear verbal arguments. An attorney for the plaintiffs did not respond to a request for comment Wednesday.
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