CHEYENNE — A small group of abortion rights protesters gathered outside the Wyoming State Supreme Court on Wednesday as the court prepared to hear oral arguments in the appeal of a high-profile abortion case.
Justices heard arguments in Wyoming v. Johnson, a case in which the appellees claim the state’s abortion bans violate state constitutional rights, including rights to equality, due process, freedom of religion and access to health care.
The lawsuit was first filed in 2022 after state lawmakers passed a series of laws targeting abortion, including a “trigger” ban on abortions across the state, with exceptions to protect the life of the mother and in cases of sexual assault or incest. It was brought by Wyoming reproductive-age women, OB-GYNs, Wellspring Health Access (the state’s sole abortion clinic in Casper) and Chelsea’s Fund, a nonprofit that financially helps pregnant people access an abortion.
Teton County District Judge Melissa Owens temporarily blocked the anti-abortion laws in 2022 from going into effect while the case was being litigated. The Legislature passed two more anti-abortion laws in 2023, the Life is a Human Right Act in House Bill 152 and a ban on abortion pills in Senate File 109. These laws also were temporarily blocked by Owens under pending judicial review.
In November, Owens ruled that the anti-abortion laws passed by the Legislature in both 2022 and 2023 violated Wyoming’s Constitution, specifically Article 1, Section 38, which allows a competent adult to make their own health care decisions. The state appealed Owens’ ruling, moving the case to the Wyoming Supreme Court, where oral arguments were heard Wednesday in Cheyenne.
While justices won’t issue their ruling in the case for weeks to come, the arguments garnered substantial community attention, with representatives from both sides of the issue packing the courtroom Wednesday.
“I showed up to support abortion rights, and mostly I showed up to protest so that people know that they’re not alone in it,” Wyoming Equality deputy director Ammon Medina said. “And I think it may be necessary to say, I did not show up to try to put pressure on the court.”
Wyoming Equality, Wyoming United for Freedom and Pro-Choice Wyoming organized Wednesday’s demonstration in front of the Supreme Court Building on Capitol Avenue to represent the Wyomingites who believe abortion is health care, according to a news release.
“I think we need to be vocal,” Pro-Choice Wyoming Executive Director Birdie Forsyth said. “I think letters to the editor are fantastic, (and) kitchen table conversations with families and friends help them understand that abortion care is pivotal, not only for like individual women. It’s pivotal for our state.”
Forsyth noted that the court’s decision could have major implications for the state. Wyoming has limited resources for pregnancy, nearly half of the state’s counties lack a practicing OB-GYN, and states with strict anti-abortion laws typically struggle to recruit OB-GYNs.
“If OB-GYNs can’t perform the standard of care in our state, they’re going to leave,” Forsyth said. “Abortion is health care, and if they are worried about a lawsuit, whether or not a woman is near death enough, they’re not going to come here and practice.”
Many of the protesters noted that their concern was with government overreach into personal decisions, a sentiment Wyoming Equality Executive Director Sara Burlingame included in a statement.
“Regardless of how the court decides this case, everyday Wyomingites are waking up to the fact that our rights are being stripped from us by an increasingly power-hungry state,” Burlingame said in the release. “Now is the time to stand with your Wyoming neighbors and claim the independence promised us by the Wyoming Constitution. We are confident that the freedom-loving people of Wyoming will recognize that respect for the rule of law and the individual are worth fighting for.”
Determining life
Representing the state, Special Assistant Attorney General Jay A. Jerde argued abortion isn’t health care, because the decision doesn’t always maintain or restore the pregnant person’s health.
Jerde said language in Section 38(a) gives a person the ability to make their own health care decision, with emphasis on the word “own.” When a pregnant woman decides to get an abortion, he said, it’s not her own decision — she’s deciding for two people.
Justice John G. Fenn said this interpretation potentially “opens a viability analysis” that could get complicated fast. Jerde said the concept that an unborn baby is a human being was “widely accepted” before the federal Roe v. Wade case was decided.
Justice Kari Jo Gray asked who decides that an unborn baby is a human being.
“Who gets to make that call?” Gray asked, adding there is no secular or religious consensus on when life begins.
Jerde said the Legislature should be the one to decide, since lawmakers are elected by and answer directly to the people of the state. Part of the reality of regulating abortions is deciding when life begins, he said.
Since legislators create the regulation, then the legislators should decide when life begins, he said. Justice Lynne Boomgaarden asked if there is a secular (non-religious) basis for determining when life begins.
Jerde said it is found in Article 1, Section 2 of the Wyoming Constitution. This section states “In their inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal.”
Jerde argued that the broad definition of “human race” implied that the right to life, liberty and the pursuit of happiness extended to the fetus, as well.
Gray also posed the question about who determines when life begins to attorney Peter Modlin, who spoke on behalf of the appellees. Modlin replied that the question was a religious one that had been debated for centuries, and that the state should not take a side.
Gray disputed that, saying it’s a philosophical question, since there isn’t even agreement on the issue among religious groups. Again, she asked, “If there is no agreement, who gets to decide?”
Modlin said the state shouldn’t decide which religious viewpoint is its viewpoint. He argued there is “no non-religious basis for personhood.” He said that in Judaism, for example, a baby becomes a person once it breathes its first breath outside the mother’s womb.
“The state has no role in this debate,” Modlin said.
Fundamental rights
Modlin furthered the appellant’s argument by adding that the bans violated existing rights. He told the court that the question at hand is whether the Legislature may deprive women of fundamental constitutional rights for the duration of pregnancy.
He argued the state’s laws do exactly the opposite of what they claim to do, which is to protect women and unborn babies.
One justice quickly pointed out this is not the premise of the case, saying it’s a matter of balancing the rights of the unborn with the rights of women.
Modlin responded that the state has maintained abortions harm women, and that its laws are meant to protect women and prenatal life.
Marci Bramlet, a lawyer for the abortion clinic, doctors and women who sued to challenge the law, argued that the bans violate multiple fundamental rights.
“These bans force women to surrender their rights any time they are pregnant,” Bramlet said. “And, in reality, every time they are pregnant, because these exceptions are unworkable, intentionally so.”
Bramlet further argued the state’s anti-abortion bans “force women to surrender their rights” the moment they become pregnant. She went on to say there is no equivalent of this type of regulation on men’s health care. The state of Wyoming has yet to regulate a man’s right to a vasectomy, she noted.
Jerde responded to the appellant’s argument, saying that while the Wyoming Constitution clearly protects natural rights, that protection only applies to existing rights.
“There is no natural right to make health care decisions; I found no cases that talk about that,” Jerde said. “There is no natural right to abortion. I found no cases that talk about that.”
Jerde added that because men and women are not “similarly situated,” equal protection does not apply, a point initially made by Gray.
Bramlet did point out that previous courts have determined that differences in gender do not inherently qualify two groups as differently situated.
Following the arguments, the court entered recess until further notice. The court has 90 days to deliver a written opinion based on the arguments presented Wednesday.
Should they uphold the district court’s ruling, the bans will not go into effect. However, should the court side with the state, the bans will go into effect immediately.
