Can decade-old anti-Obamacare move stall abortion ban in Wyo?

Wyoming anti-abortion activists view the Legislature’s passage of a “trigger ban” law — which goes into effect if Roe v. Wade is overturned this year — as the best way to end the procedure in the state.

A leaked draft of a U.S. Supreme Court decision that signals a majority of justices want to let individual states decide the issue has seemingly put Wyoming on the fast-track toward the “right-to-life” movement’s ultimate goal.

But it may not work out that way. In fact, a state constitutional amendment on health care passed by voters a decade ago could potentially prevent the ban’s implementation in Wyoming, or at least delay it until the courts decide whether it applies to abortion.

Adding a provision to the Wyoming Constitution that “each competent adult shall have the right to make his or her own health care decisions” was the work of opponents of the Affordable Care Act, or “Obamacare.” They had only one purpose in mind: Give residents the freedom to opt out of government health care.

In 2012, some 77% of voters supported the amendment. I doubt if any on the winning side ever considered it might potentially be used to affirm Wyoming women’s right to make their own reproductive health care decisions.

It’s not a clear-cut issue. Article 1, Section 38 states that “the state of Wyoming shall act to preserve these rights from undue governmental infringement.” That should be a point for the “pro-choice” side, which I belong to.

But it also says 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.” Reasonable and necessary restrictions? I’m not a lawyer, but it seems open to interpretation.

When she debated the merits of the trigger ban bill on the House floor, its sponsor, Rep. Rachel Rodriguez-Williams (R-Cody) pointedly declared “abortion is not health care.”

That view isn’t shared by the 57,000-member American College of Obstetricians and Gynecologists, which should know. “The fact is, abortion is an essential component of women’s health care,” according to the group’s website. “Abortion care is included in medical training, clinical practice and continuing medical education.”

No matter who leaked the draft opinion, and for whatever reason, it’s shown that a conservative-dominated high court could take away a federal right recognized for nearly a half-century.

Never mind that justices appointed by Republican presidents told the U.S. Senate they consider Roe v. Wade to be “settled precedent,” and lulled millions of us into complacency. They can claim to be swayed by Justice Samuel Alito’s arguments.

The fact is the right-to-life movement has been doggedly determined since Roe was decided in 1973 to overturn federal law. In Wyoming there has been no long-lasting, grassroots pro-choice movement. Voters in 1994 overwhelmingly rejected a state ban on abortion, 60% to 40%, but that victory has been largely forgotten in recent years.

The Wyoming Legislature rejected every single attempt to weaken state abortion laws between 1989 and 2017. Since then there has been a steady erosion of abortion rights, including passage of a law that bans all abortions after a fetus is able to survive outside of the mother’s womb — generally 24 to 28 weeks — and restricts state funding.

“We started to get used to getting by, sometimes by the skin of our teeth,” Sharon Breitweiser, executive director of Pro-Choice Wyoming, told me. “It was never easy, but year after year it was, ‘OK, this one got through but this one didn’t. This year we had six [bills] and only one became law.”

Of course, that was the trigger ban — the 13th in the nation to pass. Coupled with the draft opinion, it changed everything. Breitweiser said on a positive note, it has resulted in “a phenomenal” amount of donations to her group. There have also been marches in some cities, including Jackson and Laramie, which happen to be in the only two blue counties in this red state.

“But to see this [seemingly] unequivocal, outright repeal of Roe is just a gut punch,” Breitweiser said.

There are few reported abortions in Wyoming, because there is only one Teton County clinic where they are performed. According to the Centers for Disease Control, there were only 91 abortions in Wyoming in 2020, the most recent year of reported data in the state. However, 414 Wyoming patients obtained abortions in Colorado last year.

Colorado is the only state in our region that has a law protecting legal access to abortion, so Wyoming women will continue to travel there. The Guttmacher Institute said if Wyoming totally bans abortion, the average woman seeking care will have to drive 225 miles one way.

The ACLU of Wyoming said the cost and time to make the trip will most affect the poor, young women, minorities, those who are already parenting and need child care and rural residents.

Most women who have abortions in Wyoming use pills that can be ordered through the mail with a doctor’s referral, which can be obtained in a telehealth consultation.

The Senate passed a bill earlier this year that would have banned pharmaceutical abortions, but the House didn’t consider it. Abortion pills remain legal, for now, but Breitweiser said women should take nothing for granted.

“If there’s a way for [state lawmakers] to make things worse, they’re probably thinking about it,” she said.

And she’s right. “We want to stop those drugs from being prescribed or delivered to Wyoming,” a former Republican state legislator — Marti Halverson, president of Wyoming Right to Life — told the Jackson Hole News&Guide.

Wyoming could also try a tactic other states are exploring: making it illegal to take a woman across state lines to procure an abortion. While it’s been called “the next frontier” in anti-abortion legislation, several legal scholars told Bloomberg News it would be unlawful, because the U.S. Constitution’s protection of individual liberty gives people the right to freely travel.

It’s most likely anti-abortion lawmakers will try to end the exceptions for rape, incest and to protect a woman’s life (or keep her from serious harm) that were added late to the trigger ban bill by the Senate, Breitweiser said.

These exceptions passed by a single vote, and would have failed if opponent Sen. Troy McKeown (R-Gillette) hadn’t been excused that day. The House concurred to the changes this time, but may not in a future session.

“It’s time to really wake up about this year’s elections — we need to be visible, vocal and voting, Breitweiser reminded pro-choice advocates. The candidate filing period, she noted, is from May 12-27.

“Make sure you vote for people who share your values regarding women’s bodily autonomy,” Breitweiser added. “And keeping the government out of our business and our health care.”

I think the extreme-right made a huge miscalculation about the impact of overturning Roe right before the mid-term congressional elections, politicizing the high court’s decision. It could torpedo the national “red tsunami” that many pundits predict is a certainty.

Breitweiser advised pro-choice Wyoming Republican lawmakers not to be intimidated by their far-right colleagues.

“Legislators say, ‘My constituents all want this [abortion] ban,” Breitweiser said.

“[Republican legislators] tell you that you’ve got to vote for this stuff or you’re going to get primaried,” she said. “Well, guess what? You’re probably going to get primaried anyway. So vote your conscience.”