How will Wyoming enforce its new anti-abortion law?

The Human Heartbeat Act is not a perfect law for people who wish to see abortion eliminated in Wyoming. 

“Sadly, this piece of legislation will not protect life from its inception, which I would love to see happen,” House Speaker Rep. Chip Neiman, who sponsored the bill, told lawmakers during the recent legislative session. 

“But the reality of where we’re at right now, ladies and gentlemen, is that I believe this is something that we can do and work with to provide a line where we can provide protection for life.”

Following the Wyoming Supreme Court’s January decision that struck down the state’s two abortion bans as unconstitutional, lawmakers attempted a narrower approach this legislative session. Rather than uniformly banning abortion, the Human Heartbeat Act bars abortions when the fetus has a detectable heartbeat, except in medical emergencies. 

Though lawmakers describe the measure as an attempt to work within the confines of the Wyoming Supreme Court’s decision, it will almost certainly still land in court. A day after Gov. Mark Gordon signed the Heartbeat Act into law, a group of health care providers asked a judge to add the new measure to an ongoing lawsuit against two other anti-abortion laws. 

Enforcement and medical privacy 

Meanwhile, abortion providers are left navigating a new law that imposes heavy penalties for violations. If they fail to determine a fetal heartbeat, they could face up to five years in prison or a fine up to $10,000, plus loss of their medical license.

The Heartbeat Act is a criminal statute, meaning that the state, but not private citizens, has authority to bring legal action against alleged violations of the measure. Law enforcement would be responsible for investigating after receiving a report about an alleged violation. As with most criminal matters, a county attorney would then review the investigation and decide if criminal charges are merited. 

An investigation could include examining a patient’s medical records, which would require authorities to navigate the federal Health Insurance Portability and Accountability Act. Commonly known as HIPAA, the law imposes national standards on health care providers, health plans and health care billing intermediaries to protect people’s medical information. 

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Though HIPAA doesn’t apply to most law enforcement agencies, Wyoming law enforcement doesn’t have administrative subpoena powers, Allen Thompson, executive director of the Wyoming Association of Sheriffs and Chiefs of Police, said. Without that authority, Wyoming law enforcement can’t force people to testify or hand over documents without judicial approval. 

But they can still work through HIPAA’s privacy restrictions with search warrants, Thompson explained. 

“We would have to get a search warrant signed by a judge and serve that search warrant upon whoever has the records — in this case, a hospital, clinic, doctor’s office,” Thompson said. “The court would then, through that warrant, mandate the release of those documents.” 

While private medical information can be made available to law enforcement for an investigation, judges can seal that information in the court record so that it’s not available to the public, Thompson said. 

Julie Burkhart, president of Wellspring Health Access, the only clinic in Wyoming that offers procedural abortions, said that if Wellspring were met with a request for a patient’s medical information, the clinic would “run it through the legal tracks, through our counsel to make sure that that request was actually something that we could honor.” 

“We would have to see what a document said before we could make any sort of a determination,” Burkhart told WyoFile. 

“But I can tell you that, working in this field for quite some time, it’s always been our practice to fight tooth and nail for the confidentiality and privacy of our patients, and so that’s what we would always be thinking about first.” 

Detecting a ‘heartbeat’ 

While cardiac activity can be detected around six weeks, the term “fetal heartbeat” is a misnomer at this stage, according to physicians who note embryos don’t fully develop cardiac valves — which produce the heartbeat sound — this early. 

There are various ways to detect a fetal heartbeat. A transvaginal ultrasound is the most sensitive method and can detect fetal heartbeats as early as six weeks. These ultrasounds involve inserting a wand-like device into the vagina. 

Last year, Gov. Mark Gordon vetoed a bill that required patients seeking abortion medications to first undergo a transvaginal ultrasound and a 48-hour waiting period, objecting to the bill’s invasive nature and lack of exceptions for victims of rape or incest. The Legislature overrode his veto, but the law was blocked in court. 

Though the new law doesn’t explicitly require a specific technique for detecting a heartbeat, some interpret the law as a mandate to use transvaginal ultrasounds. 

“We certainly want to do everything to our knowledge that we can do to also protect our medical providers, and so, yes, that is our interpretation,” Burkhart told WyoFile. 

That could present ethical quandaries for physicians in situations where, legally, it would be safer to use a transvaginal ultrasound, even if it isn’t medically necessary or in the best interest of the patient. Conducting a transvaginal ultrasound on someone who has been sexually assaulted, for example, could in some cases be “inappropriate,” Jeff Storey, a Cheyenne OB-GYN, told WyoFile. 

“Immediately and para-immediately after an assault, a transvaginal ultrasound is invasive, and in a situation like that, oftentimes would be considered inappropriate, just considering the trauma that the patient has just undergone,” Storey said.  

Transvaginal ultrasounds are useful for detecting health issues and might be used anyway if a patient is having pain or other problems, Storey said. But very early on in a pregnancy, when a fetus is unlikely to have any cardiac activity, insurance won’t cover the procedure unless there’s some other medical need for it, according to Storey. 

“Simply checking for fetal viability when you know it’s early is not an indication that would suggest that a transvaginal ultrasound is necessary, reimbursable or indicated,” he said. 

Amended lawsuit

A court hearing to decide whether to add the Heartbeat Act to an ongoing lawsuit against other anti-abortion laws, including the one requiring transvaginal ultrasounds, is set for Monday. Enforcement of those laws is on hold while the ongoing lawsuit proceeds.

The plaintiffs’ motion asserts that the Human Heartbeat Act “involves the same fundamental problem as the prior laws before the Court,” in that it “transgresses the constitutional guarantee” of individuals’ ability “to make health care decisions without interference from the government.”

State defendants, meanwhile, are urging the court to deny plaintiffs’ request, arguing that the new claims “are independent of and unrelated to the original claims,” and that Judge Thomas T.C. Campbell, who was pulled from retirement to preside over the case, lacks authority to consider the new claims. 

Moreover, while the currently litigated laws don’t outright ban abortions, the Heartbeat Act does directly bar some abortions, the objection states. “Discovery and arguments will be substantially different from what has occurred in this case.” 

These differences, and the fact that the current litigation is already far along, would slow a final decision on the laws already before the court, defendants argue. “This Court should deny Plaintiffs’ motion because an amendment will cause an undue delay to the resolution of the current case.”  

If the judge allows the new law to be added to this ongoing lawsuit, plaintiffs will have to make another motion to block the law’s enforcement while litigation proceeds. 

WyoFile reporter Katie Klingsporn contributed reporting.

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