In a prior column, I examined the Wyoming district court abortion decision from a high level. Now I’ll look at it on a granular level.
Whether you agree with the decision or not, it is apparent from the text of the decision the court conducted a careful analysis of the facts and law surrounding the issue, and rendered a thoughtful decision based on the law.
As we know from a prior column, the district court judge for the Ninth Judicial District entered a summary judgment in favor of the plaintiffs who challenged the constitutionality of Wyoming’s abortion law.
In a 35-page-decision, the court determined abortion is a fundamental health care right, and Wyoming’s abortion and medical abortion bans violated the provisions of the Healthcare Freedom Amendment to the Wyoming constitution. As a result, the statutes were unconstitutional.
First, the court analyzed the history of abortion in Wyoming. Abortion under the supervision of a physician has been legal since 1869 to protect the life of the mother. From statehood until 1973, this statute remained essentially unchanged.
In 1973, the United States Supreme Court held in Roe v. Wade, abortion was permissible up until viability. As a result, Wyoming’s abortion statute needed to be amended to come into compliance with the Roe decision.
Women were permitted to have an abortion up until viability, and to protect the life of the mother. This law remained in effect for another 45 years without amendment or legal challenge.
In 2012, the Wyoming voters passed the Health Care Freedom Amendment, which protected health care decisions from unnecessary government interference.
In 2022, based on a new U.S. Supreme Court decision which gave the issue of abortion restriction to the states, Wyoming passed a law prohibiting abortions, except where (1) abortion is necessary to preserve the woman from a serious risk of death or of substantial and irreversible physical impairment of a major bodily function, (2) when a pregnancy is a result of incest or (3) when pregnancy is a result of sexual assault.
In 2023, the legislature also adopted the abortion medication ban, making prescribing drugs for abortion illegal.
One of the key issues in the case was whether abortion is health care. The legislature, in making abortion illegal, made a legislative finding that abortion is not healthcare.
The court conducted an extensive analysis of the history of the term “health care” to determine its meaning in the eyes of the voters who overwhelmingly passed the Health Care Freedom Amendment in 2012. The court opined that the impressions of the legislature are important, but not controlling. The court was obligated to look at what the voters meant when they passed the constitutional amendment.
The basis of the state’s argument was that because pregnancy is not a disease, abortion is not healthcare.
Summarizing the court’s analysis in its most simple sense, the court held that just because the legislature says something doesn’t necessarily make it true.
The court determined the person who provides abortion services is a trained medical professional, who provides surgical services in a licensed medical clinic. Untrained abortionists are not permitted, under any law, to provide abortions. Even under the abortion laws, licensed medical practitioners are permitted to provide abortions in cases of rape, incest or threat to the life of the mother.
Similarly, abortion drugs are regulated by the FDA. To get the drug, the patient has to visit a licensed medical professional and get a prescription. Then, the patient takes that prescription to another licensed medical professional, the pharmacist, who sells the drug and gives you directions on how to use the drug.
The decision contains this finding: “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. Accordingly, professional medical services providing medication and surgical abortions to pregnant women, whether those women are physical well or unwell, is unambiguously ‘health care.’”
The court then analyzed the facts submitted by the parties in the form of sworn testimony.
Those defending the statute made a purely legal argument. They argued no facts were necessary, and did not submit expert testimony.
The plaintiffs submitted sworn expert testimony of three experts in the fields of obstetrics and gynecology, which was uncontradicted.
The legislature, when it passed the statute, found that prenatal life, at all stages of development, must be protected. (The court politely noted the irony of all prenatal life being protected, except in the cases of rape, incest of the health of the mother – in which case – prenatal life does not need to be protected.)
The court’s analysis, based on the medical testimony, held that prior to viability, the abortion laws elevated the rights of the potential life over the rights of the mother. The court held prior to viability; the state does not have a compelling interest to interfere with the mother’s right to health care under the Health Care Freedom Amendment.
The Court also noted in some cases, the abortion laws place the prenatal life at risk. In cases of multifetal pregnancies, there is a fivefold increase in the chance of stillbirth and a sevenfold increase in the risk of neonatal death. The abortion laws prohibit, categorically, families and their physicians from conducting multi-fetal reduction procedures to protect prenatal life. As a result, the abortion law risks the prenatal life and the health of the mother, rather than protecting it.
The judge then noted the abortion laws place the health and safety of Wyoming women in real and present danger by hamstringing the ability of physicians to provide evidence-based medicine to their patients in a vast array of complicated medical situations. As a result, according to the expert testimony, physicians are required, by law, to provide substandard care across all socioeconomic groups.
The judge noted the vagueness in the statutes which makes the statutes unworkable. She noted the abortion laws are full of non-medical undefined terms such as “natural miscarriage” and “separation procedure.” She noted the use of “made-up” medical terms and clauses are too vague to actually prevent harm to pregnant women with serious medical complications.
“Withholding care in circumstances where a pregnant woman is not quite sick enough does not support the legislature’s finding that the Abortion Statutes protect maternal safety and preserve the integrity of the medical profession,” wrote the judge. “Legislating this type of substandard medical care is particularly harmful in the state of Wyoming due to its lack of infrastructure to offer emergent life-saving care.”
Wyoming had not shown a compelling state interest in interfering with the health care decisions of an entire class of people – pregnant women, the court concluded.
Whether one agrees with the reasoning of the district court judge or not, one can conclude she based her decision upon extensive analysis of the law, the constitutional provisions and the uncontradicted expert testimony supplying facts which demonstrate the legislation places lives at risk.
With an appeal of the decision pending, and a new legislative session looming, the one thing we can conclude is careful consideration of this issue is far from over.
Tom Lubnau served in the Wyoming Legislature from 2004 - 2015 and is a former Speaker of the House. He can be reached at: YourInputAppreciated@gmail.com
