New Wyo abortion ban has even more constitutional questions

By putting politics over pragmatism, Wyoming’s ideologically inflexible and frighteningly inexperienced Freedom Caucus managed to snatch defeat from the jaws of victory on one of their signature issues — abortion. 

It turns out that government ineptitude isn’t always a bad thing after all.

Having already passed one constitutionally suspect abortion ban — 2022’s “trigger law” — the Republican-dominated Legislature couldn’t help but grandstand further. In doing so the body showed its true stripes, both in terms of ideology and competence, and set its cause back by a couple of years. 

Let’s start near the beginning. 

The courts have kept the original trigger ban from being enforced while questions about its constitutionality are hashed out. That process wouldn’t be resolved until at least December. So the far-right Wyoming Freedom Caucus, anxious to settle the question, voluntarily — and against the advice of other more savvy anti-abortion House members — took the unsettled law completely off the books in favor of a new, supposedly improved model.

Called the “Life Is a Human Right Act,” the bill was sponsored by Rep. Rachel Rodriguez-Williams (R-Cody), who also drafted the trigger law. The LHRA easily won passage, 25-5 in the Senate and 46-16 in the House.

Why are sponsors so confident it will pass constitutional muster? Because lawyers who wrote the bill, including former Democratic state legislator Fred Harrison, who represents Wyoming Right to Life, assured them it would.

Harrison told a Senate committee that the trigger law depended on a 1977 Roe v. Wade definition that “confuses healthcare with abortion.”

Say what? In a moment I’ll get back to that incredible statement and why the vast majority of the medical profession worldwide disagrees. First, let’s discuss why the lawyer’s claim is so important to this legal challenge.

The trigger law challenge was filed by six plaintiffs, including four Wyoming healthcare providers. Their major argument is that the 2022 law violated a constitutional amendment passed a decade ago that guarantees competent Wyoming adults the right to make their own healthcare decisions.

That amendment was never about abortion. Conservative legislative opponents of the Affordable Care Act put it on the ballot to prevent the federal government from increasing the scope of the ACA, also known as “Obamacare.”

In their new bill, Rodriguez-Williams and Harrison tried to magically eliminate the problem by simply declaring abortion is not healthcare, but “the intentional termination of the life of an unborn baby.”

Teton County District Court Judge Melissa Owens, who granted injunctions keeping the trigger law from going into effect, enjoined a new lawsuit filed by the same plaintiffs over the LHRA, plus a ban on all chemical abortions the Legislature also passed this year. Owens was skeptical about the state’s contention this time, too.

“An abortion can only be performed by a licensed medical professional, so what authority does the Legislature have to declare that abortion is not healthcare?” the judge asked. She added that “the state cannot legislate away a constitutional right.”

Owens won’t need to look far to find evidence that abortion is indeed healthcare, not only in this country but throughout the world.

The United Nations Human Rights Committee says access to abortion is a matter of human rights, and regularly calls on nations to decriminalize abortion. Wyoming’s LHRA does the opposite, with a sentence for medical providers who perform an abortion up to five years in prison and/or a $20,000 fine.

Medical providers who “prescribe, dispense, distribute, sell or use any drug to procure or perform an abortion” would be guilty of a misdemeanor, punishable by up to six months in jail and/or a $9,000 fine under the chemical abortion ban. 

That’s right, the Legislature not only passed two laws that contradict the state’s Constitution, but also contradict each other on the potential penalties. 

Plaintiffs’ attorney John Robinson told Owens the LHRA and chemical abortion ban violate the Wyoming Constitution because “they attempt to strip women of their rights to equality, healthcare and religion.”

The 57,000-member American College of Obstetricians and Gynecologists maintains the highest standards of clinical practice and continuing education for the nation’s women’s health physicians. Abortion care is included in its medical training, clinical practice and continuing medical education.

Sound health policy, according to ACOG, “is best based on scientific fact and evidence-based medicine. The best healthcare is provided free of political interference in the patient-physician relationship. Personal decision-making by women and their doctors should not be replaced by political ideology.”

In addition to legislators’ absurd claim that abortion isn’t healthcare, the LHRA gives ban opponents more fodder for legal scrutiny.

The law includes a “findings and purposes” section that declares life begins at conception, which plaintiffs correctly note is distinct to certain Christian denominations and not shared by many other religious denominations, including many Christians, Jews and Muslims.

The Legislature jumped head-first into the already constitutionally muddy waters over religious freedom. The plaintiffs contend the law “coerces all citizens to conform their most personal and intimate actions to this sectarian view,” no matter their own religious beliefs. 

The Freedom Caucus intended to remove the trigger law’s exceptions for rape and incest. Fortunately, that unbelievably inhumane idea was thwarted when Senate President Ogen Driskill (R-Devils Tower) said he wouldn’t allow debate on the bill unless those exceptions remained.

Several anti-abortion House members — all attorneys — implored supporters to not replace the bill being litigated and start over with one that has even more constitutional questions. 

Rep. Barry Crago (R-Buffalo) urged the House to not put the LHRA into effect unless the court rejected its predecessor, making it a “trigger to a trigger” ban. The House passed Crago’s amendment but the Senate removed it.

“We’re never going to sidestep the courts,” Crago warned. “We’re not. It’s not going to happen. All we’re doing is pushing this [decision] down the road. There will be another injunction the second this passes.”

Actually, even sooner. Plaintiffs pre-filed their complaint and asked for an emergency hearing before Gov. Mark Gordon even announced he would let the bill become law without his signature. The original lawsuit is now moot, and Owens issued her temporary restraining order for the new litigation only five days after Gordon’s decision. 

Sponsors chose their rigid ideology over continuing a legal fight already in the court’s pipeline for nine months. The law at least had a district court trial date set this year. Now, anti-abortion advocates have likely delayed a decision for two years or more.

Gordon wants the Legislature, with a two-thirds vote in both chambers, to put the abortion question in the hands of voters with a proposed constitutional amendment. It could be on the ballot for the 2024 general election, where it would need a simple majority to pass. 

A vote would provide finality for both sides to a vital issue that otherwise won’t be decided for a long time. But that would require Wyoming’s “limited government” Legislature to behave like actual conservatives and listen to the will of the people — not likely. 

Few lawmakers listened to Sen. Cale Case (R-Lander), a social moderate who often clashes with the Freedom Caucus. But his analysis of the latest abortion ban nailed it.

“This bill is bad policy. It’s poorly written. It’s got the wrong motivation,” Case said. “And it’s the state of Wyoming exercising absolute power. That’s something we can’t do.”