Abortion remains legal in Wyoming after state high court strikes down bans

The Wyoming Supreme Court on Tuesday ruled that the state’s two abortion bans are unconstitutional, preserving a hotly contested right amid a push by legislators to end the practice in the Equality State.

In a 4-1 decision, the court agreed the bans conflict with a 2012 amendment to the Wyoming Constitution that protects individuals’ rights to make their own health care decisions. That amendment, ironically, was enacted by voters after a push by conservatives in the same Legislature that’s since made repeated attempts to curtail abortion.

“A woman has a fundamental right to make her own health care decisions, including the decision to have an abortion,” the ruling states. 

“The State did not meet its burden of demonstrating the Abortion Laws further the compelling interest of protecting unborn life without unduly infringing upon the woman’s fundamental right to make her own health care decisions. As such, the Abortion Laws do not constitute reasonable and necessary restrictions on a pregnant woman’s right to make her own health care decisions.”

The ruling represents a victory for abortion rights advocates in one of the nation’s reddest states. They contend abortion bans conflict with the state’s long history of skepticism toward government involvement in medical and other personal decisions.

“This ruling is a victory for the fundamental right of people across Wyoming to make decisions about their own lives and health,” Julie Burkhart, president of Wyoming’s only facility that provides abortions, Wellspring Health Access in Casper, said in a statement. “Our clinic will remain open and ready to provide compassionate reproductive health care, including abortion, and our patients in Wyoming will be able to obtain this care without having to travel out of state.”

For abortion opponents, the decision is a bitter setback that indicates an abortion ban would require changes to the Wyoming Constitution — a more difficult hurdle than a simple majority vote in the Republican-dominated statehouse.

Constitutional amendment

Even so, Gov. Mark Gordon immediately called on the Wyoming Legislature to set a constitutional amendment into motion during the upcoming budget session, which begins next month. 

“It is time for this issue to go before the people for a vote, and I believe it should go before them this fall. A constitutional amendment taken to the people of Wyoming would trump any and all judicial decisions,” Gordon said in a Tuesday statement lamenting the high court’s decision. 

If lawmakers pass a resolution to amend the constitution, it would be up to voters to approve it in the 2026 election. Speaker of the House Chip Neiman, R-Hulett, told WyoFile on Tuesday that he and Sen. Cheri Steinmetz, R-Torrington, have already begun working on legislation that would pave the way for voters to decide on a constitutional amendment.

Gordon reiterated his disappointment with the decision in a Tuesday interview with WyoFile. 

While the ruling “happened probably a few years later than I would have hoped it would have,” Gordon said, he said he was also relieved that it came ahead of the session, so that lawmakers will have the opportunity to place a constitutional amendment on the ballot. 

“Ultimately, I feel that it’s important to put in front of the voters,” Gordon said. 

The governor also responded to some lawmakers and other public officials who, in the wake of the decision, attacked the judicial branch and questioned its legitimacy because the justices are appointed. 

“If all you have is a hammer, you know, everything is going to look like a nail,” Gordon said. 

In recent years, lawmakers have expressed an increasing interest in changing the process for choosing the state’s judges. 

“Obviously people are going to have strong views about it. I get that, and I understand that. But there’s more that the judicial system does than just abortion issues,” Gordon said.

The governor also announced Tuesday afternoon that the Attorney General’s office, per his request, will file a petition for rehearing on the decision. 

Legislative history

Wyoming’s once vaunted live-and-let-live political ethos for years thwarted legislative attempts to restrict abortion. That began to change in the years before the U.S. Supreme Court’s landmark 2022 decision overturning Roe v. Wade, which had guaranteed abortion rights in the U.S. since 1973.

In early 2022, Wyoming lawmakers passed a trigger law that banned abortion with Roe’s fall. But that ban did not go into effect due to a court challenge that centered, in part, on Wyoming’s 2012 constitutional amendment. 

In 2023, Republican lawmakers in the Legislature tried again, this time succeeding in passing two abortion bans. One was a fairly comprehensive prohibition that included only a few notable exceptions, such as in the case of rape or incest. A second law banned medication in abortions — the first law of its kind in the nation.

A group of abortion providers and advocates challenged the constitutionality of the bans, and Teton County District Judge Melissa Owens temporarily blocked them as the case played out. 

Finally in November 2024, Owens ruled the bans were unconstitutional. The state, which was represented by the Wyoming Attorney General’s Office, appealed the decision to the Wyoming Supreme Court. The justices heard arguments on the case in April. 

In the meantime, Wellspring Health Access in Casper has provided abortions for women in Wyoming and neighboring states. The facility was targeted by an arsonist before it opened and later became a plaintiff in the legal challenges to the growing number of abortion restrictions passed by state lawmakers, including mandatory ultrasounds and a 48-hour waiting period passed earlier this year.

A state judge in April halted enforcement of those two laws while a separate challenge proceeds, concluding they “affect a fundamental right expressly provided for by the Wyoming Constitution.” It remains to be seen what bearing, if any, the high court’s ruling will have in the ongoing case.

Justice Kari Gray was the dissenting vote in the case while Justice John Fenn authored a concurring opinion. Meanwhile, retired Justice Kate Fox participated in the case’s consideration and decision since she heard the case, per state law and the Wyoming Constitution.

The Supreme Court’s decision

Like the district court, the high court “focused on a single issue,” the ruling states. 

The question at hand: “Do the Wyoming laws restricting abortions unjustifiably limit a woman’s state constitutional right to make her own health care decisions?” 

Article 1, Section 38 of the Wyoming Constitution — the health care-related amendment — stood at the heart of that question. And there were two ideas the court was unanimous on.

“All five Wyoming Supreme Court justices agreed that the decision whether to terminate or continue a pregnancy is a woman’s own health care decision protected by Article 1, Section 38,” the ruling states. 

The court unanimously concluded that an adult’s right to make his or her own health care decisions is a “fundamental right because of the very specific language used and because that language was put in a section of the Wyoming Constitution called the ‘Declaration of Rights.’”

The justices, however, “took different paths in analyzing the case,” the ruling states. The majority opinion, for example, was reached two different ways.  

Three of the court’s justices — Lynne J. Boomgaarden, Robert C. Jarosh and Kate M. Fox — set out to determine whether the state proved the 2023 abortion laws “were written as narrowly as possible to achieve the State’s interest in protecting prenatal life” and whether “the abortion laws were the least burdensome way the State could achieve that goal without unjustifiably restricting a woman’s constitutional right to decide whether to terminate or continue a pregnancy.” 

Those justices concluded that Wyoming did not present sufficient evidence to indicate that the laws met that threshold and therefore “the majority held that those laws are unconstitutional.” 

Justice Fenn agreed with that conclusion. However, he “arrived there by relying on a different test using only the words from Article 1, Section 38.” Ultimately, Fenn concluded that Wyoming failed to prove the abortion bans were “reasonable and necessary restrictions” on the constitutional right to make one’s own health care decisions. 

Meanwhile, Justice Gray relied on that same language, but wrote that she would refer to the Wyoming Legislature when deciding whether the abortion restrictions were “reasonable and necessary.” 

Ultimately, the court voted 4-1 to strike down the 2023 abortion laws. 

“The court recognized it cannot add words to the Wyoming Constitution, that’s not its job,” the ruling states. “But lawmakers could ask Wyoming voters to consider a constitutional amendment that would more clearly address this issue.”

This is a breaking news story and will be updated.