The Wyoming Supreme Court in a 4-1 majority ruled Tuesday that Wyoming’s abortion bans are unconstitutional, under the state Constitution’s promise of health care autonomy.
The decision doesn't defer to an earlier decision by Teton County District Court Judge Melissa Owens, but charts its own course through the constitutional amendment to arrive at the same ultimate result.
Retired Wyoming Supreme Court Chief Justice Kate Fox was called back onto the high court to participate in the decision.
The newest justice, Bridget Hill, could not participate as she was the former Wyoming Attorney General tasked with defending the abortion bans throughout much of the case.
The ruling concludes nearly four years of legal challenges in Wyoming since the state’s 2022 abortion ban “triggered” into place with the overturn of the federal abortion right under Roe vs. Wade.
One sequel to that law and other abortion bans and restrictions have followed.
After the ruling Tuesday, legislative leaders vowed to start the process of asking voters to change the constitution. The Wyoming Attorney General also intends to file a petition for re-hearing, the governor announced.
Wyoming Supreme Court Chief Justice Lynne Boomgaarden wrote the majority opinion for the court.
All five justices agreed that under Article 1, Section 38 of the Wyoming Constitution — a 2012 amendment originally designed to combat “Obamacare” mandates, but which promises health care autonomy to competent adults and parents on behalf of their children — includes abortion as a woman’s own health care decision.
That counters the state’s argument, that the woman’s “own” decision can’t discount the life of her unborn child.
“In a footnote, the majority highlighted the State’s argument that the language of Article 1, Section 38 was only meant to deal with Obamacare concerns, not abortion choices,” says a brief introduction to the opinion. “The Court recognized it cannot add words to the Wyoming Constitution, that’s not its job.
"But lawmakers could ask Wyoming voters to consider a constitutional amendment that would more clearly address this issue.”
The Wyoming Legislature since 2022 has attempted multiple abortion restrictions, but has not advanced a proposed change to the state Constitution’s health care autonomy provision.
A Fundamental Right, Too
After finding that abortion fits the definition of “health care,” the justices splintered into different paths that led four of them to strike down the state’s abortion bans, and one of them, Justice Kari Gray, to dissent.
Justices Fox, Boomgaarden, and Robert Jarosh all concluded that health care autonomy, which they said includes abortion access, is such a fundamental right that it falls under the legal standard of “strict scrutiny” — the toughest court standard applied to any government action.
To get its abortion bans past the high court, the Wyoming Legislature would have had to show that those bans served a compelling government interest, and that they were tailored in the least onerous way to achieve that interest.
The state failed to show the second half of that standard, the majority concluded.
Justice John Fenn arrived at that same result, but by a different method, pointing to the state Constitution’s provision that says the Legislature can determine “reasonable and necessary restrictions” to the health care right.
Still, concluded Fenn, the state failed to show its newest ban and its ban on abortion pills are reasonable and necessary enough to abridge the right.
Gray agreed with Fenn on using the “reasonable and necessary” standard, but said she would defer to the Legislature when deciding whether the abortion bans fit that standard. She was the lone dissent, who would have reversed Owens' decision.
Gov. Mark Gordon called the ruling "profoundly unfortunate" and said it "sadly only serves to prolong the ultimate and proper resolution of this issue."
The ruling settles the legal question for now, Gordon continued, "but it does not settle the moral one, nor does it reflect where many Wyoming citizens stand, including myself."
Gordon said the issue should go before the people for a vote on whether to change the constitution - this fall.
"I call on the legislature to pass and place a clear constitutional amendment on my desk during the upcoming Budget Session," he said. "I remain committed to the mission of saving our unborn. Every year that we delay the proper resolution of this issue results in more deaths of unborn children. This is a dilemma of enormous moral and social consequence.”
Analyzing The Abortion-Is-Health-Care Ruling
In concluding that abortions are health care, the Wyoming Supreme Court pointed to how abortions are performed and the health effects – caused by pregnancy – that they may reverse.
“The Plaintiffs presented evidence showing pregnancy can cause and exacerbate certain physical and mental health conditions,” says the majority’s opinion. Two plaintiffs, Dr. Renee Hinkle and Dr. Giovannina Anthony, both OB/GYNs in Wyoming, told Owens’ court that pregnancy can cause numerous, various health conditions. The record also shows pregnancy can cause or exacerbate mental health conditions, the order notes.
The state’s counsel in this case, Wyoming Attorney General Deputy Jay Jerde, had argued against this kind of thinking, saying health care treats ailments and diseases, and the unborn child is not an ailment or a disease.
The high court countered: “As a medical means to address the adverse effects of pregnancy and ‘restore’ a woman to a ‘condition of being sound in body, mind or spirit; [especially]: freedom from physical disease or pain,’ abortion is ‘health care.’”
More Analysis: Court Standards Of Review
Courts subject different government actions to different standards of review depending on how fundamental or ordinary are the rights those actions affect.
The health care provision of the Wyoming Constitution gives each competent adult the right to make his or her own health care decisions, and parents on behalf of their children.
That’s a fundamental right, all five justices agreed.
The voters also enacted a test for laws that implicate that right, allowing that “the legislature may determine reasonable and necessary restrictions” on it “to protect the health and general welfare of the people or to accomplish other purposes set forth in the Wyoming Constitution.”
Subsection “d” under the right says the state of Wyoming “shall act to preserve these rights from undue governmental infringement.”
The three-justice majority ruled that strict scrutiny, the toughest court test reserved for reviewing laws that implicate the most sacred rights, essentially matches that language.
Strict scrutiny requires the government to show that its laws serve a compelling governmental purpose – and that they are crafted in the least onerous way to achieve that interest.
To the three-justice majority of Fox, Jarosh and Boomgaarden, said that the mandate to protect the right from undue government infringement characterizes the “reasonable and necessary” test in a way that places it on par with strict scrutiny.
I Dissent
Gray cast that as a stretch, in her dissenting opinion.
“The Majority starts from a faulty premise – strict scrutiny applies because a fundamental right is involved,” wrote Gray. “It then strains the conjunctive force of ‘reasonable and necessary’… and connects it with language addressing ‘undue governmental infringement’” to arrive at that premise.
But the “reasonable and necessary” language is unique, and the amendment hasn’t been analyzed in the high court before, she said.
She also noted that not every fundamental right triggers strict scrutiny review.
Wyoming handles language from its versions of the Sixth, Eighth, and Fourth Amendments, for example, under lesser standards.
“Indeed,” wrote Gray, “there are more fundamental rights not subject to strict scrutiny than those that are subject to strict scrutiny.”
Wyoming also has strong case law calling for the judicial branch to defer to the legislature.
“The Majority’s analysis proceeds as if the voters were incapable of understanding the amendment they ratified – one that explicitly balances the fundamental right with ‘reasonable and necessary’ restrictions determined by the legislature,” Gray wrote.
Under Gray’s reading, the abortion bans with their exceptions can survive the reasonable and necessary test.
Fenn said that was the right standard but that the bans couldn’t survive it.
The three-justice majority said that strict scrutiny was the right standard but the bans also couldn’t survive that.
Gray had urged deference to the people’s elected lawmakers.
“When a fetus is entitled to legal protection is quintessentially a policy judgment about the relative weight of competing interests,” she wrote. “In our constitutional system, such judgments belong in the first instance to the people’s elected representatives, who must answer to the people at the ballot box.”
Judges in Wyoming are appointed, not elected. They stand for unopposed retention elections. It is rare for Wyoming voters to un-retain a judge.
Murky
The Wyoming Supreme Court majority concluded that the legislature failed to prove it advanced a compelling interest in the least onerous means possible, with the bans.
It cast the laws as murky, pointing to ambiguities in their exceptions.
The bans’ exceptions allowing abortion in cases of rape or incest are “underinclusive because they do not protect all unborn children,” the majority wrote.
That “does nothing to further the State’s interest in protecting unborn children,” the ruling adds.
Gray acknowledged that was the plaintiffs’ argument: that those exceptions detracted from the state’s purported mission to defend unborn life.
But the bans’ exceptions altogether, including those to protect the life of the mother and treat serious medical conditions, show the state was trying to ban elective abortions only, wrote Gray.
“Perfection is not required under the ‘reasonable and necessary’ standard adopted by the people” in the constitution, she added. Even under strict scrutiny, a law may focus on the government’s “most pressing concerns."
The Strategy
The legislature’s work wasn’t the only target of the opinion.
The Wyoming Attorney General’s strategy of arguing this case from a higher-level perspective and not providing granular evidence of the state’s onus to protect life factors into the majority’s ruling.
Former Wyoming Attorney General Bridget Hill, who oversaw this case as the agency head throughout much of its lifespan, is now a Wyoming Supreme Court Justice, though she did not participate in this ruling.
Jerde had argued that abortion affects both mother and child, so it’s not the mother’s “own” health care decision. He had argued that an unborn child is not an ailment, so abortion is not health care. And he had urged the court to review the law under the Wyoming Constitution, rather than enter an evidence-rich trial over the question of when life begins.
“The State did not present any evidence to justify the Abortion Laws’ restrictions on the fundamental right to make health care decisions,” the majority opinion says. “It, instead, focused its efforts on arguing abortion is not health care, the decision to have an abortion is not the woman’s own health care decision.”
The opinion adds: “We have rejected the state’s argument on each of those issues… the State’s failure to present evidence to meet its burden of proving the Abortion Laws’ restrictions on a woman’s right to make her own health care decisions are narrowly tailored to serve a compelling state interest is dispositive.”
Jerde had argued throughout the case, however, that under the legal standard for "facial" or outright constitutional challenges, it is legal analysis, not trial-style evidence, that carries the issue.
The Wyoming Supreme Court rejected its own precedent on facial challenges Tuesday, saying the party advancing a facial challenge no longer has to show that there would be no set of circumstances under which a given law could be constitutional.
Clair McFarland can be reached at clair@cowboystatedaily.com.
