Is there yet another ‘trigger ban’ in Wyoming’s future?

I think there’s a good chance Wyoming voters will be asked in the next general election whether the state should ban abortion. 

There’s a lot of territory left to cover before that might happen, including court proceedings to determine the fate of a 2022 abortion ban. Ordinarily I’d say the state shouldn’t consider such an extreme option as voting this early, but the Wyoming Legislature’s track record on the issue has me on the offensive.

The Legislature passed a law last March that would trigger a ban on most abortions in Wyoming if the U.S. Supreme Court overturned Roe V. Wade. The high court did just that three months later.

Without the trigger ban, the state could have waited to act on the matter during the current session. But a pregnant woman, another woman of child-bearing age, two OB/GYNs and two pro-choice nonprofits filed a lawsuit last summer, and Teton County District Court Judge Melissa Owens granted an injunction to stop the new law pending a ruling on its constitutionality.

That means abortion is still legal in Wyoming. The anti-abortion Freedom Caucus is rushing again to pass a ban before the courts weigh in. Rep. Rachel Rodriguez-Williams (R-Cody) sponsored House Bill 152 – Life is a human right act. She also gave us the trigger ban.

After clearing the House Judiciary Committee by a single vote, HB 152 was easily passed by the House. With 14 sponsors in the 31-member Senate, it will easily pick up the few votes it needs to land on Gov. Mark Gordon’s desk.

Before it left the House, Rep. Barry Crago (R-Buffalo) successfully tacked on an amendment that effectively makes HB 152 a “trigger to a trigger” ban. It would go into effect only if the Wyoming Supreme Court finds the 2022 trigger ban unconstitutional.

Rodriguez-Williams and other supporters hated the change because they preferred the new, more restrictive bill, but they were outnumbered. Crago said without his amendment, the state would have no abortion restrictions at all if the high court nixes the trigger ban.

Why do I see abortion on the ballot in the near future? While the plaintiffs made 10 challenges to the constitutionality of the trigger ban, the one with the best chance of prevailing is an 11-year-old constitutional amendment no one dreamed would be pivotal in the abortion debate.

Here’s a little history about the Legislature’s and voters’ positions on abortion. Lawmakers rejected all attempts to place more restrictions on the procedure for nearly three decades, until two minor changes finally passed in 2017. Since then, a steady stream of anti-abortion bills have been filed every session.

In 1992, a proposed abortion ban was put on the ballot as a constitutional amendment. It failed, 60-40%. Its defeat was largely credited to a campaign against it by pro-choice, conservative Republicans — yes, there are many.

Twenty years later, another constitutional amendment, this time asserting that “each competent adult shall have the right to make his or her own health care decisions,” was on the ballot. It was a swipe at former President Barack Obama’s effort to use the Affordable Care Act to increase federal healthcare programs.

It overwhelmingly passed, 70-30%. I initially opposed it, because I backed “Obamacare” and resented anyone trying to make the president look bad. But when I looked at the bigger picture, I realized the inherent rights guaranteed by the amendment benefited everyone. I voted for it.

Judge Owens will make the first decision about the trigger ban’s constitutionality, before the issue is appealed by the losing side to the Wyoming Supreme Court. Her ruling issuing a temporary injunction is not binding on the issues before the judge, but it’s a good indication of some of the issues she will consider.

I don’t think things look good for the Legislature, which argues that abortion is not health care. No matter how many times Rodriguez-Williams and others try to sell that to the public, it sounds ridiculous.

“Reasonable persons could consistently and predictably agree that abortion is a procedure, usually provided by a medical professional, that impacts a woman’s physical, mental or emotional well-being,” Owens wrote. In other words, abortion is health care.

Among the points Owens made are this: The Wyoming Constitution prohibits discrimination on the basis of sex, and under the ban the state would only restrict a woman’s right to make her own health care decisions.

Owens also wrote that one provision of the law — how the state determines if exceptions to it are valid — could be unconstitutionally vague.

When the Senate discussed the rape and incest exceptions last year, several members asked how a medical provider is supposed to determine whether the rape and incest allegations are valid. The obvious need for a detailed process was ignored.

When the penalty for a provider found guilty of performing an illegal abortion is up to 14 years in prison, it’s unconscionable that lawmakers didn’t make it clear.

HB 152 would remove the exceptions for rape and incest, likely because supporters needed a provision that treats all pregnancies the same, and this could “correct” a constitutional deficiency. But taking the exceptions away for conditions that would force a mother to think about the crimes that led to her child being born is a monstrous decision that would outrage many Wyomingites.

The bill also clearly violates the state government’s separation of powers. House Bill 152 would allow its sponsors to intervene in any related court cases. Owens’ district court determined Rodriguez-Williams and Rep. Chip Neiman (R-Hulett) did not have standing to challenge the 2022 trigger ban lawsuit, and this must be their revenge.

The bill would put in statute the Legislature’s interpretation of the Wyoming Constitution that affirms an anti-abortion stance.

Yes, the Legislature regularly must interpret if its actions are constitutional; it’s what competent lawmakers do. But the final decision is unquestionably in the hands of the judicial branch. I doubt if many in the Freedom Caucus understand this. They seem intent on getting their own religious beliefs enshrined into state law.

The Legislature can put an abortion ban on the next general election ballot, provided two-thirds of both the House and Senate approve. Another trigger ban could be put in place in the event the courts haven’t decided the constitutionality issue yet. I doubt if they will before the 2024 session ends.

Remember how Kansas shocked the nation last year when voters rejected an amendment that said there’s no constitutional right to an abortion? It could happen here, too.

I’m anxious to find out if our far-right legislators pushing a total abortion ban actually represent the majority of Wyomingites. I suspect they don’t. Who else is up for a triple trigger ban?