Wyoming Legislature’s anti-Obamacare amendment has officially backfired

“Pro-life” legislators who contend abortion isn’t health care and were surprised when a judge ruled the state’s two bans on the medical procedure were unconstitutional last week have no one to blame but themselves.

Some people saw it coming. In 2011, lawmakers passed a resolution to allow voters to consider amending the Wyoming Constitution the next year to protect the right of citizens to make their own health care decisions without government interference. 

The amendment has “the potential to become quite significant and quite difficult to reverse,” the Wyoming Hospital Association concluded in its review of that year’s session.

Not exactly Nostradamus, but absolutely accurate. The Legislature’s action — a misguided attempt to halt state compliance with the Affordable Care Act, also known as “Obamacare” — led to one of the most difficult and lengthy legal battles in the state’s history. 

And it’s far from over. The decision to protect health care rights — which turned out to benefit people, but not the way legislators intended — will not only be difficult to reverse, but perhaps impossible.

That’s because the 35-page ruling by 9th District Judge Melissa Owens in Teton County is based on sound legal reasoning that’s likely to be accepted by the Wyoming Supreme Court when it hears the state’s appeal. Pro-life legislators who won’t accept the court’s decision will spend the next few years looking for new ways to stop legal abortions.

The far-right Wyoming Liberty Group analyzed the impact of the “Health Care Freedom Amendment” it enthusiastically supported before it was approved by more than three-fourths of voters in 2012. Pointing to a provision in the amendment that reserved the Legislature’s authority to restrict health care decisions in reasonable and necessary ways, the Liberty Group predicted that if Roe v. Wade was overturned lawmakers would further restrict or ban abortion.

There were lawmakers, who cautioned the amendment could have unintended consequences. 

“If they are really concerned about that then they are the ones that are going to vote no,” Kermit Brown, then-House Judiciary Committee chair, told Wyoming Public Radio. “Not necessarily because it’s a bad idea, but because it’s not been fully vetted and it’s not fully understood with all its nuances and its consequences.” 

Owens noted that an abortion provider is a trained medical professional who provides surgical medical services in a licensed medical clinic. For medication abortions using drugs regulated by the Food and Drug Administration, a patient must see a licensed medical professional for a prescription. A licensed medical pharmacist then sells the drug to patients and provides directions about how to use the medication.

“The court finds that the common and ordinary meaning of the word ‘health care’ in the Health Care Amendment unambiguously means professional medical services to individuals whether they are well or unwell,” the judge wrote.

The Legislature, when enacting the bans, stated abortion is not health care, which isn’t true simply because lawmakers said so. The state maintained that no facts were necessary to prove its assertion and did not even bother to submit expert testimony, probably because they couldn’t find anyone to make such a claim and be taken seriously.

But the plaintiffs — two doctors, two women, an advocacy group and Wellspring Health Access of Casper, the only clinic in the state that provides surgical abortions — submitted sworn expert testimony from three experts in the fields of obstetrics and gynecology, which were uncontradicted.

Owens wrote that the bans were vague and full of “made up” medical terms such as “natural miscarriage” and “separation procedure.” The bans are unworkable, she found, and would not actually prevent harm to pregnant women with serious medical complications.

“Legislating this type of substandard medical care is particularly harmful in the state of Wyoming,” Owens wrote, “due to its lack of infrastructure to offer emergent life-saving care.”

Bob Brechtel, a former Casper legislator, cosponsored the resolution to put the amendment on the ballot. He and others said the intent was to prevent Wyomingites from having to enroll in Obamacare against their will. But Wyoming never required anyone to have health insurance, government-issued or otherwise, and the federal mandate ended during Donald Trump’s first presidential term.

Ironically, the amendment provided the strongest argument against the Legislature’s aims to outlaw abortion, first with the “trigger ban” that went into effect after the U.S. Supreme Court overturned Roe v. Wade. The landmark case made abortion legal before the viability of a fetus.

A lawsuit to overturn the ban was filed, and Owens soon granted a temporary injunction to halt enforcement while she considered the suit.

Before that case was decided, the Legislature passed two more abortion bans in 2023 that made the initial lawsuit moot. The Life Is a Human Right Act was a near-total abortion ban, except to save the life of the mother or if the pregnancy was the result of rape or incest that was reported to law enforcement. 

Prohibiting chemical abortions was the first in the nation to ban all medications used to induce abortions. The same plaintiffs filed a lawsuit to overturn both laws, and once again Owens approved a temporary injunction.

Owens asked the Wyoming Supreme Court several questions, including if the 2012 amendment made banning abortions unconstitutional, and if the trigger ban violated citizens’ right to privacy. The high court declined to answer and said a ruling from the district court could refine and narrow the issues the justices would later determine.

I will be shocked if Owens’ ruling is overturned. The judge did an excellent job framing the legal issues and, in my view, correctly concluded the abortion bans “suspend a woman’s right to make her own health care decisions during the entire term of a pregnancy and are not reasonable or necessary to protect the health and general welfare of the people.”

How will lawmakers respond when the session begins in January? They could pass more abortion restrictions, like a bill Sen. Tim Salazar (R-Riverton) told POLITICO he plans to sponsor requiring doctors who prescribe pills to induce abortion to be responsible for the disposal of fetal tissue.

The far-right Freedom Caucus will likely pave the way for another amendment vote, this time to ban abortion.

About 60% of voters in 1994 rejected the ban. Many conservative Republicans who were pro-choice led the fight against it.

Not much has changed to indicate a different result. A recent University of Wyoming poll showed only 11% of Wyomingites want all abortions banned, and 31% support restrictions while allowing abortions in the case of rape, incest or when a woman’s life is in danger. A total of 20% prefer those exceptions and others if the need for abortion is clearly established. Finally, 39% want abortion to remain a matter of personal choice.

“I’ll be very grieved if they actually use that [health amendment] as an instrument of death,” Brechtel told the Casper Star-Tribune when the bans were temporarily stopped. “That wasn’t our intent at all.”

Retired Rep. Cathy Connolly (D-Laramie), who was House minority leader in 2012, opposed the amendment because she considered putting something politically motivated in the constitution offensive.

“It’s come to bite them in the ass,” Connolly told the Star-Tribune in August 2022.

It certainly has. Her blunt statement is why I admire Connolly’s long public service to Wyoming: She’s an unabashed truth-teller. She sensed things wouldn’t turn out the way smug Republicans expected when they salivated over handing former President Barack Obama a loss. They will never get over what they see as their mistake, but it was a great win for people who know the government has no business overriding their personal health care decisions.