Sweeping Abortion Ban Stalled For Eight Days, Senate President Cites Constitutional Concerns

Wyoming Senate President Ogden Driskill told Cowboy State Daily on Friday that he has constitutional concerns about the Life Is A Human Right Act and isn't certain whether to advance the bill to the Senate for a vote.

Clair McFarland

February 17, 20234 min read

Sen Ogden Driskill 2 17 23
(Cowboy State Daily Staff)

Citing concerns about its constitutionality, Wyoming’s Senate president has not yet acted on a proposed sweeping abortion ban.  

Senate President Ogden Driskill, R-Devils Tower, told Cowboy State Daily on Friday that he hasn’t decided whether to release the Life Is A Human Right Act to the full Senate for a vote in the near future. He also has not assigned the bill to a committee for a vote. 

“The easy route for me is to throw that bill out on the floor,” he said. “It’s not a problem for me to do so – other than I don’t think it’s the right thing.”   

Driskill said that he’ll learn more Monday from a group of pro-life lawyers who helped draft the bill, which would repeal the current law’s exceptions for abortions performed after rape or incest.  

The act also contains detailed instructions to Wyoming’s judicial branch, which Driskill said could be seen as an infringement of the judiciary’s power.  

Pro Lifers Butt Heads  

The act, House Bill 152, cleared the state House of Representatives on Feb. 8 after multiple fiery debates between pro-lifers who take different stances on the bill. 

Opponents say the bill is unconstitutional and will enable rather than halt abortions in Wyoming by getting the state’s law caught up in courts for years.   

Bill proponents, conversely, say HB 152 directly addresses concerns belaboring Wyoming’s current abortion ban, the trigger ban, which is in the state courts system now.   

Another Lawsuit  

Driskill said he’s been hesitant to unleash the bill so far because he also worries it could “do just the opposite of what (the authors) think.”   

If HB 152 passes, the current lawsuit pro-choice plaintiffs are waging against Wyoming’s trigger ban would become moot and pro-choice groups may instantly file a new lawsuit against the new law, said Driskill.   

“If I let this bill out … we go for another three to five years with nothing happening,” said Driskill, adding he believes it’s better to let the current ban run its course in court.  

The ‘Health Care’ Debate  

In July 2022, Wyoming enacted the trigger ban outlawing all abortions except in cases of rape, incest and severe health or death risks to the mother. 

Within hours, Teton County District Court Judge Melissa Owens paused the law, saying it contains ambiguities for doctors and mothers, and it’s still unclear whether abortion is a form of “health care.”   

If abortion is health care, then it could be protected under the Wyoming Constitution, which guarantees Wyomingites health care autonomy.   

Rape And Incest  

Driskill said he is pro-life, and so is most of Wyoming.   

But Wyoming voters “get pretty squishy when it comes to rape and incest,” he said. 

Voters have urged him against favoring HB 152, Driskill continued, because it does not offer exemptions allowing abortion in cases of rape and incest.   

On the other hand, Driskill said a young lady approached him at the Capitol recently and wept, pleading with him to advance the bill. The young lady has an adopted family member who was conceived by rape.   

“She’s very concerned about this rape and incest thing,” said Driskill.   

Equal Protection For Whom?  

But House delegates debated another aspect to the rape and incest exemptions: whether having rape and incest exemptions in an abortion ban undermines the state’s ability to defend the ban.   

Many pro-lifers argue that abortion should be prohibited under the promise of equal protection for all people found in the state and U.S. constitutions.   

Plaintiffs in their lawsuit against the trigger ban have said that the reason Wyoming hasn’t evoked the equal protection argument in defense of its law is because the rape and incest exemptions would actually place Wyoming in violation of its own equal protection clause, if it applies to the unborn.  

House Majority Floor Leader Rep. Chip Neiman, R-Hulett, told delegates that HB 152 would erase that complication by repealing the rape and incest exemptions currently in law.   

Monday Meeting  

Driskill said he has spoken with Neiman and the bill’s main sponsor, Rep. Rachel Rodriguez-Williams, R-Cody, and has also heard from the bill’s detractors.   

“I’ll visit with anybody on it. I don’t have malice on it. I don’t have a predetermined end,” said Driskill.   

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Clair McFarland

Crime and Courts Reporter