Wyoming Supreme Court to answer whether state constitution protects abortion – County 17

CASPER, Wyo. — Lawyers for the state and pro-choice advocates squared off before the Wyoming Supreme Court on Wednesday on whether the state constitution’s amendments regarding freedom of choice in healthcare apply to the issue of abortion.

In the wake of the U.S. Supreme Court’s reversal of abortion protections in 2022, Wyoming passed two laws the following year: the Life is a Human Right Act and a ban on chemical abortion medications. Both included exceptions for rape and incest.

The laws were struck down by a Teton County state district court judge in November, ruling that the state did not present a compelling interest to protect fetuses over the rights conferred in the Article 1, Section 38 of the state constitution, according to WyoFile.

The state appealed to the Wyoming Supreme Court, which heard oral arguments on Wednesday.

Article 1, Section 38; Right of health care access.

(a) 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.

(b) Any person may pay, and a health care provider may accept, direct payment for health care without imposition of penalties or fines for doing so.

(c) The legislature may determine reasonable and necessary restrictions on the rights granted under this section to protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution.

(d) The state of Wyoming shall act to preserve these rights from undue governmental infringement.

Wyoming State Constitution

Special assistant state attorney general Jay Jerdy told the justices Wednesday that the amendment, enacted in 2012 to push back against the Obama administration’s Affordable Care Act,  had nothing to do with abortion, and that only anecdotal references were made to it when the amendment went before voters.

“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 from Roe in the Wyoming Constitution,” the state’s brief said.

Jerdy said the state had a legitimate interest to protect unborn lives. Because the legislature had created those protections through the laws, Jerdy argued that the proper recourse for pro-life advocates was to elect new representatives.

Attorney Marcia Crank Bramlett argued for the pro-choice plaintiffs, saying that abortion bans ran contrary to the “libertarian spirit and roots” of the Wyoming ethos, which prioritized individual rights over the “police power” of state. 

“The decision whether and when to have children is among the most profoundly personal, private decisions a person makes in their entire lifetime,” Bramlett said.

“We have to discuss what these bans do, which is to force a woman to surrender her rights any time she is pregnant,” she said.

Though the two laws at issue do include exceptions in cases of rape or incest, Bramlett asked the justices to consider how a doctor could reasonably make that determination in practice. 

Attorney Peter Modlin also argued for the pro-choice plaintiffs defending the district court’s decision. He said the question of “when life begins” is an open discussion in the secular sense, and only specific religious interpretations grant personhood to fertilized eggs. 

“The state cannot take sides in a millennia-long question of the status of a fetus,” he said.

Modlin led off by attacking a tangential premise on the pro-life side, which is that abortion harms women. Modlin said that, statistically, carrying a pregnancy to birth was about 50–100 times riskier than having an abortion. He added that in cases where there are multiple fetuses, forcing a woman to carry on a pregnancy could result in the death of all of them.

One justice said he was concerned that affirming the district court’s broad logic on healthcare autonomy could open “Pandora’s box” on issues like marijuana and any other activity that one might claim as a “personal healthcare decision.”

The justices also asked Modlin to consider that the constitutional amendment protected “decisions,” and not any particular “procedure.”

After arguments wrapped, Chief Justice Kate Fox said the court would take the arguments under advisement and issue a ruling at a later date.

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