When the U.S. Supreme Court overturned Roe v. Wade, Kenneth Chestek turned to the Wyoming Constitution.
The University of Wyoming law professor had a hunch the liberty-minded state might provide protections where federal law had not, he said.
“There is no right to an abortion in the United States Constitution,” Chestek said. “But [the Supreme Court] expressed no opinion about whether that right might exist someplace else.”
In the Wyoming Constitution, Chestek homed in on Article 1, section 38, where he found a potential right to abortion enshrined in the “right of health care access” clause.
The clause states “Each competent adult shall have the right to make his or her own health care decisions. The parent, guardian or legal representative of any other natural person shall have the right to make health care decisions for that person.”
Chestek, expressing his own views and not the university’s position, says the clause could serve as a tool in a legal challenge to Wyoming’s abortion ban trigger law, which, once Gov. Mark Gordon certifies it, would make the procedure illegal in most cases. Some doctors, lawyers and pro-abortion-rights groups agree.
“I think there’s going to be concern that this new law imposes undue government infringement,” said Cheynne attorney Abigail Fournier.
But provisions granting the Legislature leeway also exist, she said. “I think you have two competing positions there.”
The Wyoming Supreme Court has yet to interpret the constitutional amendment’s relationship to the forthcoming ban, and questions about what qualifies as “health care,” and “reasonable and necessary restrictions,” could determine if the new law is constitutional or not.
While there’s scant precedent for scholars to examine, Chestek said, “there’s very strong arguments on the side of reproductive choice for women.”
The clause wasn’t added to Wyoming’s constitution to address abortion. Instead, Chestek said, it spawned from a backlash to the Affordable Care Act in 2010 and aimed to enshrine residents’ right to make their own health care decisions.
Lawmakers introduced a measure establishing the clause during the 2011 legislative session and voters overwhelmingly passed the amendment in 2012.
“It was clearly, very explicitly a response to Obamacare to protect people’s rights to their own health care decision,” Chestek said. “And now I think it has some very significant impact on reproductive choice decisions that women have a right to make.”
There are potential reasons the clause might not protect the right to abortion in Wyoming, Chestek said.
Those defending the ban could, for example, argue that abortion is not health care — a stance many anti-abortionists hold. Chestek doesn’t think that’s a solid case.
“Pregnancy affects the health of the mother every time. [Health care] is inherent in the process of being pregnant,” he said.
Robert Keiter, author of a comprehensive review of the Wyoming State Constitution and former UW constitutional law professor, agreed. Arguing abortion is not health care could be difficult, he said.
“I don’t know how abortion doesn’t equal a healthcare decision,” Keiter said.
The stronger argument against abortion protections, Chestek said, would come under the clause’s third subsection, which states 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.”
Abortion-access opponents could argue that banning the procedure falls under the carve-out, Chestek said, and is necessary to protect the “general welfare of the people.”
However, the words “reasonable and necessary” signal to the courts that the Legislature will need a powerful justification for imposing such a restriction, Keiter said.
The state also has to show there is no alternative means to accomplishing that interest, Keiter said. “And the state can almost never do that. In other words, these rights are almost absolute.”
A reasonable restriction might be limiting abortion to the first two trimesters, Chestek said, because in that case lawmakers would be balancing the rights between the mother and a viable fetus.
But because Wyoming’s law is an outright ban, he believes it might be harder to prove it falls under the clause’s carve-out.
Keiter argued that one potential interpretation of the clause might actually prohibit the Legislature from extending rights to a fetus.
He points out the clause specifically references protections given to “a parent, guardian or legal representative of any other natural person.”
“Now, that’s unusual language where it says ‘natural person,’” Keiter said. “One reasonable way to interpret that is that this provision is not extending any right to a fetus because a fetus is not a natural person. And if that is the correct interpretation then you might assume the Legislature cannot take action to protect a fetus.”
The issue of fetal personhood has come up in various cases across the nation, Keiter said. He noted that Roe v. Wade determined numerous references in the U.S. Constitution to “a person” did not include a fetus.
However, Wyoming law has shifted. “Fetal personhood language has been creeping into the statutes more and more the last few years,” Sharon Breitweiser, executive director of Pro-Choice Wyoming, previously told WyoFile.
For example, in 2021 Senate File 96 – Homicide amendments passed, creating two new crimes for murder of an “unborn child.”
There are various ideas of when life begins, Chestek said, but “those are scientific and religious arguments. And they devolve.”
The Wyoming Constitution contains other sections that those looking to protect the right to abortion might utilize, Keiter said.
The unenumerated rights provision, the due process clause and the equality clauses could all play a part in an attempt to overturn the ban. “One could put together those provisions to make additional arguments in support of a woman’s right to make this sort of private, sensitive decision without overbearing state limitations,” Keiter said.
Whether any constitutional clauses are wielded and how Wyoming courts interpret them remain to be seen.
If Wyoming’s abortion ban is enacted and lawsuits follow, the state will be in uncharted territory.
“This case can go in any direction,” Chestek said.