I taught constitutional law at the University of Wyoming in the 1990s. One thing I learned quickly is that Wyomingites don’t have much patience for courts that seem to be inventing rights or words to get the outcome they want. So it’s no surprise that the Wyoming Supreme Court’s recent abortion decision has been greeted by many critics as “judicial activism.”
Opinion
Their charge goes like this: The Wyoming Constitution protects each competent adult’s right to make their own “health care decisions,” but the court simply declared that abortion counts as “health care,” without any real basis for doing so. Properly understood, the argument continues, “health care decisions” are about treatments to sustain and restore life, not to end it.
That criticism misunderstands both what the court did — and what Wyoming law already says.
The court’s reasoning was straightforward. The state constitution protects “health care decisions.” Abortion involves medical judgment about a patient’s body. Therefore, abortion decisions are “health care decisions.” You may disagree with that conclusion, but it’s not exotic constitutional theory. Courts decide every day whether a particular practice fits within a general legal category. It’s regular business.
Still, the court’s conclusion is right for another reason — one the court itself did not emphasize — and it comes not from moral philosophy, but from existing Wyoming law.
When a state’s laws use the same phrase in different places, courts generally assume it means the same thing each time. (There’s a fancy Latin phrase for this, but I’ll spare you.) Otherwise, a legislature would be free to sprinkle words around the statute books and leave courts and citizens guessing which definition applies where.
So if critics insist that “health care” means only treatment designed to sustain life or restore physical health, the obvious question is: Does Wyoming law actually use the term that way?
The answer is no.
Consider the “Provider Orders for Life-Sustaining Treatment Program Act” passed in 2015. That statute repeatedly uses the phrase “health care” to describe what doctors, nurses and facilities must do when a patient has clearly expressed wishes about end-of-life treatment. And what does the law require? It requires health care providers to honor a patient’s decision not to receive treatment — even when doing so will hasten death.
That is not care aimed at restoring health. It is not care designed to prolong life. Yet Wyoming law says “health care” providers have to provide it if that’s what the dying patient wants. It specifically uses that term, over and over again: “health care.”
This matters because it directly undercuts the state’s argument in the abortion case. If “health care” in Wyoming law includes respecting a patient’s decision to refuse life-sustaining treatment, then that term cannot plausibly be limited just to interventions that preserve life or cure disease.
Seen in this light, the Wyoming Supreme Court did not invent a definition of “health care” to reach a preferred result. It applied a definition that Wyoming law has long embraced — one that treats decisions that relate to dying as much a part of “health care” as decisions that relate to living.
My argument might easily be misunderstood. I am not saying that aborting a fetus is the same as caring for a person at the end of life. Not at all. I am saying that the meaning of “health care” under one provision of Wyoming law is informed by how Wyoming law uses the phrase “health care” elsewhere.
People can disagree, in good faith, about abortion policy. But calling this decision “judicial activism” misses the mark. The court didn’t make the word “health care” mean something new. It took Wyoming law at its word.