That Time Wyoming Tried Banning Abortion In The Constitution And Failed

If the Wyoming Supreme Court upholds a recent district court judge’s ruling striking down the state’s two abortion bans as unconstitutional, lawmakers and voters may try to change the state Constitution.

It’s a last-ditch effort the current generation of Wyoming voters has not tried.

But 30 years ago, a group of pro-life activists rallied a petition to put a proposed abortion ban on the state’s general election ballot. The ban would have made exceptions for cases of rape, incest, and risks to the mother’s life, and would have penalized doctors but not the women receiving the procedure.

It failed drastically, with 39% of Wyoming voters in favor of it and 58% voting against it. Another 3% of voters left that portion of their ballots unmarked or flawed.

In a Wyoming ballot initiative, unmarked and flawed ballots count toward the “no” vote. But even if every person who left an inadequate answer there had marked “yes,” the initiative still would have fallen short by more than 33,000 votes.

Recent data indicate Wyoming has shifted more pro-life in the three decades since. A University of Wyoming survey of 739 randomly selected Wyomingites reveals 11% say abortion should never be allowed; 31% would restrict the procedure with exceptions for rape, incest, or risks to the mother’s life, and 20% would restrict it with other potential exceptions.

Conversely, 39% of those surveyed said women should always have access to abortions as a matter of personal choice. 

The Unseen Hands Prayer Circle

Now 82, Richard Grout clearly remembers starting the petition effort in 1991.

He was a pastor at a community church in Bar Nunn, who also worked fulltime for a local school district. He had some background in journalism, so he started sending a Christian newsletter to churches throughout the state. His mailing list included many groups that are often contrary to each other: Protestants, Catholics and Mormons (now called members of the Church of Jesus Christ of Latter-Day Saints).

Through that network, Grout started the petition. He mobilized people he characterized as prayer warriors throughout all 23 counties. He called his group the Unseen Hands Prayer Circle.

That “referred to the fact that unborn babies’ little hands are not seen,” recalled Grout with a chuckle, adding that the name also referred to a country gospel song called “The Unseen Hand.”

To him, it was more of a prayer effort than a political one, he said. 

Going To Russia

By Dec. 8, 1992, the Wyoming Secretary of State’s Office informed the group it had verified 24,646 signatures – the number required based on the 1990 election turnout.

The measure would appear on the 1994 ballot.

But in 1993, Grout felt another mission tugging him. The Iron Curtain had fallen years before, and Grout and his wife wanted to go minister to people in Russia. They left Wyoming for Russia that summer and didn’t return to fulltime residency in the United States until four years ago when they were “shut out” of Russia, Grout told Cowboy State Daily.

They still work with contacts in Russia, remotely.

“We helped start a work with people, and now that’s still continuing,” he said. 

A Clash In Wyoming

Meanwhile, the ballot initiative was embattled.  

Pro-choice groups cried foul, noting that 1973 U.S. Supreme Court case Roe v. Wade, then still the law of the land, had established a federally-recognized right to abortion.

If Wyoming voters banned abortion in their state Constitution, Wyoming would clash with what was then a more supreme precedent of rights.

The Wyoming National Abortion Rights Action League (NARAL) and Planned Parenthood of Wyoming both sued the initiative’s backers and sponsors: Unseen Hands Prayer Circle, Richard R. Larson, Alan C. Stauffer and Kathy Helling.

Helling was a Democratic politician who had challenged Republican U.S. Sen. Al Simpson for his seat in 1990. She was ardently pro-life, while Simpson was pro-choice.

The pro-choice groups also sued Wyoming Secretary of State Kathy Karpan, as the official who put the measure on the ballot, though Karpan agreed with their legal arguments against it.

The plaintiff groups asked the Wyoming Supreme Court to block the ballot measure because of Roe, along with other objections.  

Robert Shively, of Casper, represented Planned Parenthood of Wyoming in the case.

“It wasn’t much of a saga. Basically a lot of brief writing,” Shively told Cowboy State Daily. The ballot measure failed because the people of Wyoming were mostly pro-choice, he said.

Most voters weren’t worrying about the legal costs of future litigation from opposing Roe: they were probably just voting their conscience, said Shively.

“That’s why it failed. It certainly wasn’t due to any great legal brilliance on my part,” he said with a laugh. 

‘For Anybody Else I Might Stew’

The lead counsel for the Wyoming National Abortion Rights Action League was a Burgess, Davis & Cannon attorney named Kate M. Fox, who now serves as Chief Justice on the Wyoming Supreme Court.

Fox led most of the arguments on the case, Shively recalled, adding, “I think Kate’s brilliant.”

Shively said he does not believe Fox’s past role as NARAL’s counsel would color her handling of the upcoming Wyoming Supreme Court abortion challenge.

“Part of this comes from personal knowledge of Kate Fox; but Kate is competent and professional and will basically consider the issues on their legal merits,” said Shively, adding that if she ever felt she couldn’t handle an issue impartially, she’d recuse herself.

“For anybody else I might stew about it, but not Kate Fox,” said Shively.

Elisa Butler, State Court Administrator for the Wyoming Judicial Branch, issued a statement on the matter Friday, saying a case Fox handled 30 years ago isn’t going to diminish her work from the bench.

“All judges bring wide experience to the bench, for the benefit of the people. In their careers as lawyers, it was their responsibility to represent a great array of clients,” wrote Butler. “Law schools teach that every client deserves representation and the ethics of not bringing bias to the job.”

Butler encouraged Cowboy State Daily to review Fox’s other clients from her days of litigation.

The outlet did, and noted Fox has represented a broad array of civil plaintiffs and defendants - individuals and companies - as well as some criminal defendants. Some of her other household-name clients have been Pamida Inc, Black Butte Coal Company, and JC Penney Company.

“What you would find is an impressive base of legal experience representing clients whether popular or not,” added Butler. “It would be a false premise to assert that representation of a single client thirty years ago suggests any lawyer’s personal position on a particular issue today.”

Judges handle all cases the same, by applying the rule of law to the facts at hand, Butler wrote, adding, “Chief Justice Fox will approach this case with fairness, objectivity, and the rule of law, as will each of the justices.” 

Came Back To Bite Him

On the pro-life side of the issue, Rock Springs attorney Richard Honaker represented the Unseen Hands Prayer Circle.

This was one of many proofs of Honaker’s strong pro-life views that came back to bite him, Shively said.

President George Bush nominated Honaker in 2007 to fill the federal judge seat of then-outgoing U.S. District Judge Clarence Brimmer.

Pro-choice groups disputed the nomination. Besides representing Unseen Hands, Honaker had unsuccessfully championed the “Human Life Protection Act” while he was a state lawmaker – and a Democrat – in 1991. At the time, it would have been the most restrictive anti-abortion law in the nation.

The editorial board of the Casper-Star Tribune opposed Honaker’s potential judgeship as well, writing in a 2007 op-ed: “We're certainly not saying a pro-life lawyer shouldn't become a judge. But no matter how you feel about the issue, the right to obtain legal abortions has been the law of the land.” The writers criticized then-Sens. Craig Thomas and Mike Enzi for recommending Honaker, and called his nomination “contentious.”

“Honaker's history on the abortion issue was hardly a secret,” the editorial board added.

Honaker did not receive a vote in the Senate Judiciary Committee, which then had a slim majority of Democrats, and did not land the judgeship.

But Honaker could have handled the abortion issue fairly, Shively told Cowboy State Daily.

“I think the world of Dick Honaker,” said Shively. He recalled the public conversation sphere at the time, and said many perceived Honaker to be inflexible.

“(But) he’s anything but inflexible,” said Shively. “He’d have been a wonderful judge. It’s Wyoming’s loss.”

That Was The Whole Point

Honaker agreed that his pro-life advocacy came back to bite him. But in a Friday interview, he didn’t seem to regret it.

“(The Senate’s rejection) didn’t have anything to do with my judicial qualifications,” he said.

He’d received bipartisan support from prominent Wyoming figures and attorney groups. He had graduated from Harvard with a bachelor’s degree in 1973 and the University of Wyoming Law School in 1976; had served as Wyoming’s second State Public Defender from 1979-1981; later served as president of the Wyoming State Bar; and was a Fellow of the American College of Trial Lawyers.

“That didn’t matter in the world of beltway politics,” he said.

But a colleague of his at the time told him, “Well, greatest beneficiary of this (rejection) will be your clients,” Honaker recalled.

“That was a good thought,” he added, “because that was really true; I love representing people.”

As for the Unseen Hands ballot initiative, Honaker said its partial conflict with Roe was the whole point: it was meant as a vehicle to challenge the federal right to abortion.

The momentum of the 1989 U.S. Supreme Court case Webster v. Reproductive Services, which seemed to invite such challenges, fueled pro-life efforts like his in multiple states, he said.

Honaker switched from Democrat to Republican in 1994. He said pro-lifers used to be common within the party, but it became a more of a “small tent” on the issue starting in the mid-90s.  

In The Fire

Though Karpan, as the state’s chief election official, was named as a defendant in the Unseen Hands case, she didn’t wage pro-life arguments in it.

Karpan, a Democrat, is a Catholic who believes life begins at conception, but she also disagrees with enforcing her own belief on others, she told Cowboy State Daily on Friday.

Some of the other Catholics and pro-lifers of all stripes shunned her over that, during her 1994 run for the governor’s seat.

On the other hand, she also opposed the notion of using federal funding for elective abortions – which brought the ire of women’s rights groups.

“You don’t want the government in that matter, why would you want to use government dollars to pay for it?” said Karpan.

 “I had the unintended consequence of making everybody unhappy,” she said, adding with a laugh, “I took a stand in the fire, and I took fire from all sides.”

Karpan lost her bid for governor to Republican Jim Geringer, during the massive, national red wave of 1994. 

Vote On It

Ultimately the Wyoming Supreme Court rejected the pro-choice groups’ challenge, noting that parts of the ballot measure were constitutional and should go before the people.

For example, the ballot measure would also have banned the use of state funds on abortions, with exceptions. That same verbiage has since become law under the state’s statutes.

If the voters approved the amendment, Wyoming’s courts could sort out the unconstitutional parts in a later action, but they couldn’t sever those before the amendment’s passage because Wyoming can’t change the language of a ballot measure once it’s on the ballot, says the 1994 ruling on the case.

Justice William A. Taylor “reluctantly” concurred with the majority opinion. He said it would have been better if the high court had merely declined to address the controversy until after the vote, rather than banking on the idea that its constitutional parts would later be “severable” from its unconstitutional parts if it passed.

“The voters of Wyoming will make a reasoned decision about this initiative,” wrote Taylor. “Notwithstanding the outcome, however, there will be unresolved issues because of the language of the initiative and today's decision.”

Unresolved Issues …

The abortion debate was relatively hushed in the three decades that followed because the Roe precedent still controlled every state.

But in 2022, the U.S. Supreme Court overturned Roe v. Wade, returning the issue of abortion legality to the states.

Intense debate and two years of litigation followed.

Wyoming enacted a trigger ban immediately, banning abortion with exceptions for rape, incest and severe health risks.

Teton County District Court Judge Melissa Owens blocked that law from going into effect during a pro-choice coalition’s lawsuit challenging it. When state legislators passed a replacement ban with more carveouts in 2023, Owens blocked that one while reviewing the case as well.

On Monday, Owens declared the abortion ban and a similar law banning the marketing of chemical abortion drugs unconstitutional, striking them down altogether.

She referenced a 2012 ballot initiative, which the Wyoming voters enacted, promising each competent adult the right to make his or her own health care choices. Owens made a judicial finding that abortion is health care, and is therefore a protected right.

Looking Ahead, And Back

Going forward, it’s not clear what next year’s supermajority-Republican Wyoming Legislature will do.

Lawmakers can wait to see how the appeal ends.

Or they can try to pass narrower abortion restrictions that would survive the “strict scrutiny” court test reserved for laws that implicate a fundamental right.

Or they can advance a ballot measure to appear before the voters in the 2026 general election – which is an option for which the governor has advocated in past statements.

As for Grout, he’s not sure how such a ballot measure would perform – just as he had no idea the people of Wyoming would reject his 1994 effort as strikingly as they did.

But on Thursday, Grout was mostly surprised anyone remembered it.

“You’re the first person that’s asked me about this for 30 years,” said Grout. ““(It’s) wonderful to me, because I thought we were entirely forgotten to the pages of history.”

Clair McFarland can be reached at clair@cowboystatedaily.com.