Gordon names former Wyoming Supreme Court justice who spoke out against abortion as new attorney general

Keith Kautz, a retired Wyoming Supreme Court justice known to carry deep religious convictions against abortions, will become the state’s next attorney general, Gov. Mark Gordon announced Tuesday.

Kautz stepped down from the bench last March, when he turned 70 years old — the legally mandated retirement age for justices in Wyoming’s high court. He is, in essence, swapping positions with Bridget Hill, who served as Wyoming AG until Gordon appointed her in April to fill the supreme court seat left open by the retirement of former Chief Justice Kate Fox earlier this year. 

Fox and Kautz were admirers of each other’s passion for the rule of law, though they often disagreed on judicial decisions, WyoFile reported in a November 2023 piece on Kautz’s retirement. 

Kautz grew up around Huntley, Wyoming, and Lyman, Nebraska, and has a University of Wyoming law degree. Gov. Mike Sullivan first appointed him to the bench in 1993, and Gov. Matt Mead appointed him to the high court in 2015. 

Kautz will become the state’s top law enforcement officer, and its chief litigator, at a time when women’s right to seek an abortion is one of the most pressing issues facing the Wyoming judiciary. Wyomingites have been waiting on the state supreme court to rule on the constitutionality of two bans on abortions passed by the Legislature in 2023. If the justices strike down the total ban, a number of court cases on other abortion restrictions — such as an ultrasound requirement, prohibitions on off-label abortion prescriptions and strict regulations on the state’s lone abortion clinic — will all likely have to be litigated. Kautz would presumably helm the state’s defense of the Legislature’s policies in those cases.

As the state’s top law enforcement officer, Kautz could also play a role in determining how zealously Wyoming enforces whichever restrictions on abortion do survive legal muster.

The former justice made his personal opinions on the matter clear in April, days before his old colleagues held a hearing on the abortion ban. Alongside conservative religious leaders and leaders of the Wyoming Freedom Caucus, Kautz participated in a “pray in” ahead of that hearing, leading prayers that the justices would uphold the ban.

“To our great shame, Father, we have decided that an unborn child made in your image isn’t a child at all, but merely an unidentified tissue of potential life that may be destroyed and killed even though we know it is alive,” Kautz said during his prayer remarks. “We are becoming enslaved to unthinkable corruption and immorality and we deserve the consequences of our actions.”

His participation in that event raised eyebrows among some pro-choice advocates. When questioned about it by Wyoming Public Media, Kautz said he had asked Fox not to assign him any cases in his retirement — retired judges in Wyoming will sometimes be called upon to hear a case due to judicial workload or judges having conflicts of interest.

“Because of my interest in this particular issue, abortion, and the right to life and the sanctity of life, I thought it would be better for me and the judiciary for me not to be assigned any cases,” Kautz told WPR. 

It’s unlikely a Wyoming attorney general would recuse themselves from defending or enforcing a state law because they personally believed in it, legal observers said. While state officials are governed by conflict-of-interest rules, those apply to financial conflicts or matters involving family members. Michael Pearlman, a spokesperson for Gordon, said he wasn’t able to comment on the question. WyoFile was unable to reach Kautz on Wednesday, when his appointment was announced. 

In a news release announcing his appointment, Gordon praised Kautz’s long tenure in the Wyoming judiciary. When the two men met to discuss the appointment, Kautz quoted George Washington, who said that “due administration of justice is the firmest pillar of good Government,” according to the news release. 

In his 2023 interview with WyoFile, Kautz lamented the divisive rhetoric and polarization in today’s politics.

“It’s unfortunate,” he said. “I don’t think that’s productive. But I’m not willing, in a democracy, to say ‘You can’t have the rhetoric.’”

Gordon’s appointment may be well received by his critics on the right. It comes at a time when some legislators have called for changing Wyoming law to make the attorney general an elected position, as opposed to an appointed one. Last year, the House Judiciary Committee passed a bill to make that change with a 6-3 vote. Chamber leadership chose not to consider the measure on the floor, however, killing the bill.