Rex Arney: How Wyoming Dealt With the Roe v. Wade Decision in 1973

Rex Arney was a freshman in the Wyoming State Legislature when the Roe v. Wade Supreme Court decision was made.

Rex Arney

December 22, 20215 min read

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On December 1st, as I listened to the oral arguments in Mississippi abortion case that seeks to overturn Roe v. Wade, I had a flashback to 1973.  In early January of that year, I was sworn in as a freshman member of the Wyoming House.  Just 13 days later the U.S. Supreme Court handed down its decision in Roe v. Wade.

The Roe decision, and its timing, caught the Wyoming Legislature by surprise and it was unprepared to address an issue as controversial as abortion during the 1973 session.  Nonetheless, since Wyoming’s abortion law only permitted abortions in cases when necessary to preserve the life of the mother or in cases rape and incest, this landmark decision rendered Wyoming’s law unenforceable.  This meant that the Legislature needed to act if Wyoming was to have an abortion law that was enforceable.

On January 29th, just seven days after Roe decision, two bills were hastily drawn up and introduced in the Wyoming Senate, one provided penalties for performing abortions, and the other included the “viability” stage in the pregnancy before which abortions could be legally performed.  Given that nearly one-half of the 40-day legislative session had already passed, both houses of the Legislature had to act quickly on this legislation.

After approval by the Senate, both bills were referred to the House Judiciary Committee, chaired by Alan Simpson.  I was one of the nine members on that committee.  The bills were thoroughly discussed and amendments were proposed, following which the bills were submitted to all members of the House for further consideration.

My “flashback” took me to the debate on the “viability” bill.  After 48 years, one’s recollection tends to fade, but my memory of the debate was almost as if it took place yesterday.  The debate began late one afternoon and extended into the early evening hours – probably not the best time to debate a subject of this magnitude.

The gallery was jampacked with observers, many of whom were recording the debate or taking notes, while others were leaning over the railing in an attempt to get a better view of members who were speaking.  I didn’t know if this was an effort to intimidate members, but as a legislative newbie, I was not about to stand up and say anything. 

The discussion on the bill was long and the heated, reaching a fever pitch at times.  At least one member broke down and cried.  Yet, the debate was civil and the members were respectful of one another’s views.  Following the debate, the bill was approved on a voice vote and two days later the bill passed the House by a vote of 49 to 11. 

So far so good, but the Senate did not concur with the House amendments to the bill.  A conference committee was appointed in an attempt to work out the differences between the two versions of the bill.  However, no agreement was reached and the bill died. 

On the other hand, the bill providing for penalties of up to a $10,000 fine and five years in prison for violating the law passed and was signed into law, only to be struck down by the Wyoming Supreme Court in August, 1973, leaving Wyoming without an enforceable abortion law.

By 1977 I had moved to the Senate when the Legislature next tackled the abortion issue.  A comprehensive bill passed and became law that included Roe’s “viability” provision and, also, provided penalties for violating the law with imprisonment up to 14 years for performing or assisting in an abortion after “viability”. 

This law is essentially the same today as when was passed in 1977 with only a couple of amendments.  There have been numerous efforts to further amend the law, as recently as during the 2021 session, but they have failed. 

Given that the composition of the Supreme Court is far different from what it was in 1973, most observers expect that the Court will either repeal or modify Roe v. Wade. 

If this happens, there will be a flurry of activity in the state legislatures around the country seeking to reduce allowable abortions to 15 weeks after conception, as in the case of the Mississippi law, or even to shorter period.  It is likely that the Wyoming Legislature will be among those legislatures taking it up.

While abortion was controversial before the Roe decision, the debate largely took place outside the political arena.  That has since changed. 

Today, abortion seems to be even more controversial than it was prior to Roe, partly because it has become politicized. The polarization along party lines is highlighted in Jonathan Lange’s December 1st column in the CSD in which he pointed out that Wyoming’s three Republican members in Congress, along with several Wyoming GOP legislators, have signed onto amicus briefs supporting Mississippi’s efforts to overturn Roe v. Wade.  

While I enjoyed my years in the Wyoming Legislature, I am glad not to be serving in that body when abortion is next debated.  I have been there and done that.  This time I will be an interested observer; perhaps sitting the gallery, if there is room. 

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Rex Arney