If the legislature would trust the voters, this constant abortion litigation would end.
Instead, Judge Thomas Campbell, a distinguished former circuit and district court judge who recently retired, issued an order blocking Wyoming’s two newest abortion restrictions during the court case challenging them.
Those who dislike the decision complain that Judge Campbell, who is a fine and reputable jurist, is retired. The argument is a smoke screen designed to divert attention from the true substance of Judge Campbell’s decision.
All Judge Campbell did was hit the pause button on the legislation until it could have a full trial and take evidence from both sides on how to proceed on the issue.
The decision addresses two new pieces of legislation passed this last session. One requires abortion clinics be licensed as ambulatory surgery centers (House Bill 42). The other requires, in most cases, a transvaginal ultrasound at least 48 hours prior to an abortion (House Bill 64).
(Some of my female friends have suggested those males who voted for this legislation should have a trans-anal ultrasound to check the prostate as a privilege of serving in the Wyoming legislature.)
Wyoming voters in 2012 passed the Healthcare Freedom Amendment to the Wyoming Constitution. The amendment says each competent adult shall have the right to make his or her own health care decisions and the state of Wyoming shall act to preserve these rights from undue government infringement.
Judge Campbell opined, consistent with Teton County District Court Judge Melissa Owens last year, that health care decisions are a fundamental right. The legislature can only restrict those decisions if they have a very good reason.
The amendment allows the legislature to adopt reasonable and necessary restrictions on health care rights, but those restrictions must withstand “strict scrutiny,” the two judges’ orders say. That’s the court test reserved for laws that affect fundamental rights – and it’s a high bar to clear.
The evidence presented to the court, which was uncontradicted, was that surgical abortions in clinic settings are inherently safe for the mother. Mandating that abortions be performed in surgery centers offers no additional protections.
Licensing abortion clinics as surgery centers adds nothing, so the restriction did not withstand strict scrutiny.
The ultrasound requirement also did not withstand strict scrutiny. The proponents of the law argued that sticking a probe up a woman’s private parts prior to an abortion ensures pregnant women can make competent decisions – a faction of informed consent.
The judge ruled that calling transvaginal ultrasounds necessary to obtain informed consent for an abortion offends common sense.
The state argued the state mandated rape (transvaginal ultrasound) could potentially identify ectopic pregnancies earlier, thus promoting women’s health.
The argument failed strict scrutiny because only women seeking abortions receive the procedure, those people who want to terminate the pregnancy, and not the women who want to carry the pregnancy to term.
Additionally, the court ruled the 48-hour waiting period serves no legitimate purpose, and the state presented no evidence as to why the 48-hour waiting period was necessary for the advancement of health care.
This litigation will proceed to trial and ultimately be appealed to the Wyoming Supreme Court.
The five jurists on the state Supreme Court have a difficult task ahead, weighing the requirements of the Wyoming Constitution against the will of the legislature.
Some say the definition of insanity is doing the same thing over and over again and expecting different results. Here the legislature, again, attempts to redefine the term “health care.” And, again, the court says the definition of health care is the plain meaning of the language when the constitutional amendment was passed.
The Wyoming legislature for four years now has had at its disposal the tool necessary to clarify the state’s position on abortion.
Why does the legislature distrust the will of the voters so much?
Instead of strained interpretations of the English language, the legislature could just put the issue in front of the voters by passing a ballot measure for a constitutional change. Let the people of Wyoming decide.
Take it out of the hands of the legislature and courts. Put the issue in the hands of the people.
If the Freedom Caucus is truly operating on a landslide conservative mandate, its members would trust their voters. Their refusal to do so is telling. Simply let the voters decide with a constitutional amendment and the issue will be forever resolved.
Not trusting the voters and opting instead to pass legislation with strained and illogical conclusions has allowed abortion law to be tied up in the courts for three years. If the people of Wyoming truly want to make abortion illegal, they should have the opportunity to vote on the issue as a constitutional amendment.
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
