New law seeks to create path around state’s constitutional health care provision adopted in 2012
Wyoming legislators approved two bills related to abortion this week, including a ban on medication abortion and a bill stating abortion is not health care, as a means of skirting the Wyoming Constitution in a court challenge to its abortion ban.
Voters in Wyoming approved adding a new section to the state’s constitution in 2012 amid criticism of the Affordable Care Act, colloquially known as Obamacare. The amendment states, “Each competent adult shall have the right to make his or her own health care decisions. The parent, guardian or legal representative of any other natural person shall have the right to make health care decisions for that person.”
That constitutional provision was the basis for a Wyoming judge to grant a preliminary injunction in August halting enforcement of a trigger law passed by the Wyoming Legislature in 2021 that was set to go into effect following the U.S. Supreme Court’s decision to return the right to regulate abortion to the states.
The Wyoming Supreme Court is still considering whether to uphold or strike down the trigger law on those constitutional grounds. Until it does, abortion remains legal in Wyoming.
House Bill 152, called the Life is a Human Right Act, states that abortion is not health care.
“It is within the authority of the state of Wyoming to determine reasonable and necessary restrictions upon abortion, including its prohibition,” the bill states. “In accordance with (the Wyoming Constitution), the legislature determines that the health and general welfare of the people requires the prohibition of abortion as defined in this act.”
The bill includes several exceptions for abortions performed in certain circumstances, including:
- Incest or sexual assault, as long as there is an accompanying police report
- Treating a woman for cancer or another disease requiring medical treatment which may be harmful or fatal to the fetus
- Ectopic or molar pregnancies
- Lethal fetal anomalies with a substantial likelihood of fetal demise within hours of birth
The bill was introduced in late January and received final approval from the House and Senate after the two bodies agreed to amendments that added the exceptions on Thursday.
Democratic and Republican legislators raised objections to the bill over constitutional concerns and what they viewed as an attempt to circumvent the Wyoming Supreme Court.
Rep. Ember Oakley, R-Rawlins, expressed opposition to the bill when it was introduced in the House Judiciary Committee but voted for the final bill after its amendments.
“Wyoming has already passed a law that bans abortion. So, unless we were to completely change directions there, that’s where we’re at. We passed a law … now it’s under judicial review. That’s the process, folks, that’s the system,” Oakley said when the bill was introduced in committee. “The idea that you can take the ball and say never mind, we’re going home, we don’t want the courts to do their job, and then write into law that we … somehow ourselves can do our own interpretation, it’s not the way it goes.”
New bill criminalizes use of medication to induce abortions
Legislators also passed a bill prohibiting the use of medications that are used with the intention of terminating a pregnancy, including mifepristone, misoprostol, mifeprex, mifegyne, “or any substantially similar generic or non-generic or chemical dispensed for purposes of causing an abortion.”
The bill includes prohibitions on manufacturing, distributing, prescribing, dispensing, selling, transferring or using the drugs in the state for the purpose of procuring or performing an abortion. Those who violate the law would be guilty of a misdemeanor punishable by up to six months in prison and a maximum $9,000 fine.
The measure was passed as the rest of the country waits on a federal judge in Texas to rule on the U.S. Food and Drug Administration’s authorization of the use of mifepristone in medication abortions.
The bill grants an exception from prosecution for the person who received the abortion. It also does not apply to instances when the drug is used to prevent substantial harm to the pregnant person’s life or health, when the pregnancy is a result of incest or sexual assault, and when the drugs are used to treat a natural miscarriage.
The pregnant person’s life or health does not apply to their mental or emotional state, according to the bill, such as if the person is suicidal.
Several legislators attempted to add amendments that would exclude misoprostol from the law, as the drug is used for other health conditions such as stomach ulcers, but those amendments failed.
Both bills now await the signature or veto of Wyoming Gov. Mark Gordon.