Gov. Mark Gordon signed into law Monday a measure that would ban abortions in Wyoming in all but the earliest weeks of pregnancy. The governor affirmed in a letter his “pro-life” commitment but also cautioned that the new law will likely land in court again.
The law bans abortions in the case of a “detectable fetal heartbeat,” which can come as early as six weeks.
Gordon predicted that the new law will likely end “in the all too familiar and unfortunate territory of pro-life litigation,” an apparent reference to a multi-year court fight over a pair of 2023 abortion bans that ended in January when the Wyoming Supreme Court ruled them unconstitutional.
The measure, Gordon wrote in his signing letter, doesn’t “offer the durable solution” he had hoped for. He referenced the fact that lawmakers declined to bring forward a constitutional amendment to address the fact that the high court ruled the state constitution doesn’t allow for an outright ban on abortion.
“Those efforts were shot down in favor of this sole remaining and flawed Act,” Gordon wrote. Even so, the governor decided to sign the measure, he explained, “with both support and concern.” “Life is sacred,” Gordon wrote.
The governor’s predictions appear to have already begun manifesting. Julie Burkhart, president of Wellspring Health Access, a Casper-based facility that is now the sole clinic in Wyoming offering procedural abortions, said in a statement shortly after Gordon’s signing that she’s prepared for another court battle.
The ban, Burkhart said in a statement, infringes on Wyomingites’ “constitutional freedom to make their own health care decisions” — the same line of reasoning that the Wyoming Supreme Court relied upon to strike down the 2023 abortion bans.
“With so many across Wyoming already struggling to access reproductive health care, restrictive policies like these take us further in the wrong direction,” she said.
“We are prepared to challenge this ban in court and fight to protect reproductive rights, health and freedom in Wyoming. We will also continue to work with our regional and national partners, including clinics, abortion funds and practical support groups, to help our patients access the care they need.”
In the wake of January’s Wyoming Supreme Court decision, Speaker of the House Chip Neiman, R-Hulett, said he had begun working on legislation that would allow voters to decide on a constitutional amendment related to the abortion question in Wyoming. Instead, he sponsored the Human Heartbeat Act, which he pitched as a way to “provide protection for life” while acting within the constraints resulting from the court’s decision.
Critics, however, have argued that the measure is just an abortion ban under another name, given that many women don’t learn they are pregnant before six weeks.
The bill requires that determination of a heartbeat “shall be made using standard medical practices and techniques.” Early detection could involve an invasive procedure known as a transvaginal ultrasound. Gordon vetoed a bill last year that would have required patients seeking abortion medications to first undergo a transvaginal ultrasound and a 48-hour waiting period. The governor and others objected to the bill’s invasive nature, among other things.
The Legislature overrode Gordon’s veto, and abortion rights advocates soon filed suit. A judge put the law on hold while the courts mull the case.
The new law, which is effective immediately, requires people to determine if a fetus has a detectable heartbeat before a pregnancy is terminated, except in the case of a medical emergency. It bars abortion if the fetus has a detectable heartbeat or if the person performing the abortion has failed to determine whether there’s a fetal heartbeat.
Medical professionals found in violation of the law would face a felony offense punishable by up to five years in prison or a fine up to $10,000. They would also lose their professional licence.
While cardiac activity can be detected around six weeks, the term “fetal heartbeat” is, at this stage, a misnomer, according to physicians who note an embryo hasn’t developed cardiac valves at that stage.
In his state of the state speech last month, the governor called for a “durable solution” regarding abortion policy following numerous efforts in the Legislature to restrict the procedure. Those efforts and the court battles that have followed in their wake “have only weakened Wyoming’s laws on this matter,” Gordon said. Since Wyoming passed an abortion trigger law in 2022, abortion rights advocates in Wyoming have scored repeated victories in the courts.
Gordon called on the Legislature to pass a constitutional amendment during the session. That way, he said, Wyoming voters could settle the matter once and for all. Lawmakers did bring a constitutional amendment bill related to abortion to the session, but it failed introduction in the Senate.
The main obstacle now to an abortion ban is the Wyoming Supreme Court’s conclusion that abortion is a fundamental right under the Wyoming Constitution, Gordon wrote.
“Whether we agree with that interpretation or not, it is the current constitutional framework governing abortion policy in Wyoming,” Gordon wrote. He maintained that a constitutional amendment or a “narrowly crafted solution” will be needed “to define that balance.”
The governor cautioned against ignoring “the legal complexity of abortion policy in Wyoming.”
“The State must protect unborn life while acting carefully within the constraints of the Wyoming Constitution and court decisions,” he wrote.
Gordon also criticized some aspects of the measure itself, particularly regarding the law’s lack of exceptions for women facing pregnancy caused by rape or incest. “This is in my mind an unfortunate flaw,” he wrote.
“To reaffirm, I resoundingly share the determination to defend the lives of unborn children and support the intentions behind the Human Heartbeat Act,” Gordon concluded.
“Regrettably, this Act represents another well-intentioned but likely fragile legal effort with significant risk of ending in the courts rather than in lasting, durable policy. Rather than finding a remedy that saves the unborn, I fear we have only added another chapter to the sad saga of repeatedly trying to force a specific solution.”
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