Editor’s Note: This story has been updated to include reactions from stakeholders.
Abortions will remain legal in Wyoming.
The state’s supreme court ruled Jan. 6 that two near-total abortion bans are unconstitutional.
“A woman has a fundamental right to make her own health care decisions, including the decision to have an abortion. The State did not meet its burden of demonstrating the Abortion Laws further the compelling interest of protecting unborn life without unduly infringing upon the woman’s fundamental right to make her own health care decisions,” the court concluded in a 4-1 split order.
“As such, the Abortion Laws do not constitute reasonable and necessary restrictions on a pregnant woman’s right to make her own health care decisions,” the opinion continued.
Chief Justice Lynne Boomgaarden, Former Justice Kate Fox, and Justices Robert Jarosh and John Fenn voted to strike down the two 2023 abortion laws that banned most abortions by medication and most procedural abortions.
Justice Kari Gray dissented.
Their ruling upholds an earlier decision from a Teton County district judge, which found the laws violate pregnant people’s constitutional right to make their own healthcare decisions in Wyoming.
Gov. Mark Gordon has since asked the attorney general’s office to file a petition for rehearing on the Supreme Court decision. The office will file that petition within 15 days.
Wyomingites react
For Giovannina Anthony, one of the plaintiffs who sued the state, the opinion is a big win. She’s an OB-GYN and provides medication abortions in Jackson, Wyo.
“ I don't have to lie to patients about what they can and can't do. I don't have to send them out of state,” Anthony told Wyoming Public Media. “This is very much something that affects everybody in every small town and every setting in the state.”
Chelsea’s Fund, a Wyoming abortion advocacy group, also celebrated the ruling in a Facebook post.
“Today’s ruling affirms what we have always known: that abortion is essential healthcare, and Wyoming women have the constitutional right and the freedom to make their own healthcare decisions without government interference,” the post said.
Meanwhile, Speaker of the House Chip Neiman (R-Hulett) told Wyoming Public Radio that he’s in disbelief. The Wyoming Freedom Caucus member co-sponsored the abortion laws that were struck down.
“Those little unborn human beings, those little men and women, those girls and boys in the womb have rights,” he said. “ Who's listening to their voices?”
The Freedom Caucus said today marks a dark day in Wyoming history.
“After decades of liberal leadership in the governor’s office, the State Supreme Court has been filled with jurists who reject basic biology and human dignity,” the caucus’ statement reads.
Neiman said he and other lawmakers will draft a constitutional amendment to put before Wyomingites “to see what their position is on protecting life.”
This is something Gordon is also calling for. The governor signed both of the bans into law. In a press release, he said the state Supreme Court opinion is “profoundly unfortunate."
“This ruling may settle, for now, a legal question, but it does not settle the moral one, nor does it reflect where many Wyoming citizens stand, including myself,” he said. “It is time for this issue to go before the people for a vote, and I believe it should go before them this fall.”
State Sen. Eric Barlow (R-Gillette), who is running for governor, said he wants to advance a “pro-life agenda,” but he will always approach these issues with respect for the laws.
“Today’s decision supports Wyoming’s constitutional process and the role of our elected officials in setting state policy,” Barlow said in an Instagram post. “No matter where people stand on this deeply personal issue, Wyoming residents expect their leaders to respect the rule of law and the institutions that uphold it.”
Meanwhile, according to Rep. Mike Yin (D-Jackson), “the Wyoming Democratic Caucus will keep standing up for the Constitution and the rights of every Wyomingite and our communities.”
A closer look at the Wyoming Supreme Court opinion
All five justices agreed that the decision “whether to terminate or continue a pregnancy is a woman’s own health care decision protected by Article 1, Section 38 [of the state Constitution],” and that an adult’s right to make their own healthcare choices is a fundamental right due to specific language included in a section of the Wyoming Constitution called the “Declaration of Rights.”
However, justices took different paths to reach that decision.
Three concluded the state did not present enough evidence to show that restrictions and exceptions on abortions, whether medical or surgical, aren’t more restrictive than necessary to “serve the State’s interest in protecting prenatal life.” They used a “strict scrutiny” standard to reach that conclusion.
Justice Fenn agreed with their ruling but used a different standard. In a concurring opinion, Fenn wrote that “the State failed to prove the 2023 laws were ‘reasonable and necessary restrictions’ on the right to make one’s own health care decisions.”
Justice Gray also used the “reasonable and necessary” standard, but arrived at the opposite conclusion. She wrote in a dissenting opinion that she would defer to the Legislature when deciding whether the abortion restrictions were “reasonable and necessary.”
“Because article 1, section 38 allows the legislature to establish ‘reasonable and necessary’ restrictions on the right to make health care decisions to protect the safety and general welfare of the people or to accomplish other purposes of the Wyoming Constitution, and the abortion statutes reflect the legislature’s policy choice of preserving prenatal life at all stages of development, but recognize exceptions in a variety of circumstances, they constitute a reasonable and necessary restriction and do not violate article 1, section 38. I would reverse the decision of the district court,” she wrote.
A summary of the opinion said, “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. 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 court protected abortion access for not just Wyomingites, but for people across the Mountain West. According to abortion providers, Wyoming has been a stronghold for abortion access for people from Idaho and South Dakota, where bans are in effect.
How we got here
This closes a chapter in the battle over abortion rights in Wyoming.
The case has been spiraling toward the state’s highest court for several years, ever since the U.S Supreme Court turned decision-making power back over to states in 2022.
The laws in question are the Life is a Human Right Act, which bans almost all abortions, and a medical abortion ban, which bans abortion pills. Both bans, passed by Republican lawmakers in 2023, include exceptions for cases of rape, incest and some threats to a woman’s life.
A group of abortion supporters sued the state shortly after those passed, and the Teton County judge blocked the laws from going into effect. The state then appealed that decision to the Wyoming Supreme Court. Parties have been waiting for the justices to weigh in since a hearing in mid-April.
The case has centered around whether abortion is healthcare, and who gets to decide when life begins.
The state has argued lawmakers have the ability to make these decisions, since they’re most answerable to the people. Attorneys for abortion access supporters, however, have said the belief that life begins at conception is based in religion.
What’s next
A vote to amend the state’s constitution could come before Wyomingites as early as this fall, if lawmakers push for that in their upcoming budget session that starts on Feb. 9.
The Legislature could also pass more laws to restrict abortion access. So far, they’ve passed laws requiring ultrasounds for abortion-seekers and building renovations at abortion clinics, though a judge has also blocked those from going into effect.
