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.”

ACA backlash

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.” 

Anti-abortion activists in the silent March for Life in Cheyenne in January 2020. (Nadav Soroker, Wyoming Tribune Eagle/Wyoming News Exchange)

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. 

Fetal personhood

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.” 

Other clauses

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.

Sofia Jeremias reports on healthcare, education and the economy in Wyoming. She received her master's degree from the Columbia Journalism School and previously reported on the West for Deseret News.

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  1. There is a big deception right in front of us that needs to be addressed. Is an abortion “health care” or is this a lie? I have heard this mantra used so many times to justify the act of abortion without even defining what exactly is health care. I submit that an abortion is not “health care” or a “health care issue or choice” but a lifestyle issue/choice. A pregnant female either wants to carry a pregnancy to term and become a mother to her child or she wants to end the pregnancy and not be a mother. The difference in lifestyle goes without saying.The fact that the destruction of the potential child takes place at the hands of medical providers using surgical instruments does not make this health care unless the mother is in danger anymore than a forensic pathologist doing an autopsy with surgical instruments on a dead body to determine cause of death is healthcare for the deceased. On the legal side of things every constitution I have read has as its basis “Natural Law”. What could be more un-natural than ending a healthy pregnancy with surgical instruments when if left to its “natural course” in most cases would result in the birth of a unique human being? It boggles the mind how we ever accepted abortion as a natural course of human rights in our country.

  2. As a minister, I see two parallel precepts, science and religion. From the scientific perspective, the facts are a fetus cannot survive outside a woman’s body until the third trimester, therefore the health and well-being of the pregnant woman should be medically privileged over the fetus. With the overturning of Roe and from a religious perspective, the religious beliefs of the anti-abortionists are being privileged over the religious beliefs of everyone else. I have counseled many women who have made the choice to terminate a pregnancy and who’s health and well-being were served by this choice. More importantly, their relationship with their “God or no-God” was not infringed upon by other’s who are using the government to weaponize their religious beliefs. It is time for the pro-choice movement to take back the moral high ground because plurality of religious beliefs is, in the end, that which serves the flourishing of life in all its dimensions. Freedom of religion is the last battle ground for the struggle against outdated religious doctrines based on the exclusion of women so oppressive patriarchal structures of social power can be maintained. The brilliant Elizabeth Cady Stanton in her book “The Women’s Bible” argued for a greater truth when she pointed out the obvious, women are created by “God-the Creator” just like men, therefore have the same moral agency as men. Today this fact is more compelling than ever.

  3. Sounds like a court challenge that I would support in any way I could including donations of time and money.

    People of Wyoming don’t want interference from the Govt. The Supreme Court is interference from the Govt.

    We have the right to make our health care decision.

    Great article

  4. Republicans rarely have an issue with making the constitution say whatever suits them, and this wont stop them. They do the same thing with the bible.

  5. Thanks for this article and the analysis. I’m surprised no one has focused on the second sentence though in terms of what it could mean for parental consent issues in the case of rape or incest. “The parent, guardian or legal representative of any other natural person shall have the right to make health care decisions for that person.” Given Wyoming’s current law at least upholds those exceptions (for now and thanks Senator Case), would the constitutional protections be less protective for some our most vulnerable? It’s worth pondering.

  6. There are 100 residents in Wyoming aborted each year. We suffer 180 residents to suicide most years. Wyoming spends millions to stop suicide?

  7. A positive example of “unintended consequences”! It will be interesting to see what happens when this hits the courts in our state. The legal logic in the article seems well founded, but who knows what will happen should a case work its way through the court system.

  8. I hadn’t known about this important amendment. It is ironic that it was a backlash to the Affordable Care Act, since the most egregious violations of patient autonomy were made by private insurers before the ACA.

  9. Ah ha,the worm turns. What will Clarence and company do when and if this hits the Supreme Court? Good for the professor of law to see that “freedom” can’t be turned into a restriction, and that pregnancy kills manyore women than legal abortion.

    1. “Pregnancy kills many more women than legal abortion.”

      Huh? Where did you get your information? I found the numbers below in very quick Google search.

      Forbes reported an estimated 630K to 886K abortions per year. (see Abortion By The Numbers; May 7, 2022; https://www.forbes.com/sites/katiejennings/2022/05/07/abortion-by-the-numbers/?sh=4829707b60a8 )

      The CDC reported 861 maternal deaths in 2020. (See Maternal Mortality Rates in the United States, 2020; February 2022; https://dx.doi.org/10.15620/cdc:113967external icon )

      1. It’s obvious that Vickie Lidner was comparing the number of maternal fatalities due to pregnancy to the number of matrrnal fatalities caused by legal abortion. From Pew Research:
        “Two women died from induced abortion in the U.S. in 2018, in both cases from abortions that were legal, according to the CDC. The same was true in 2017. In 2016, the CDC reported seven deaths from either legal (six) or illegal (one) induced abortions. Since 1990, the annual number of deaths among women due to induced abortion has ranged from two to 12, according to the CDC.”
        In simple terms, legal abortions are far safer than full term pregnancy and live births.

      2. “Pregnancy kills many more women than legal abortion.”

        Yes, by roughly 2 orders of magnitude.

        The number you found on Forbes isn’t relevant to the question at hand.

        The number of US women who die from legal abortion has been fewer than 25 per year since 1976.

        FYI more women die from pregnancy in only one year than from legal abortion in 20 years.

  10. A year ago, WyoFile published Sam Western’s column “The Surprising Liberalism of Wyoming’s Constitution.” I expect quite a few people scoffed at the notion–I certainly did–but after studying the Constitution carefully, I found myself agreeing with Western.

    And so now here we are: Wyoming, possibly the reddest state in the country, may be where American women’s reproductive rights are most closely protected.

    The battle lines are drawn.