On a stormy, winter Monday evening earlier this week, a Wyoming district judge sent out an email: There was a new ruling in the state’s ongoing legal battle over abortion rights.
After taking almost a year to make the decision, the judge had struck down the state’s two near-total abortion bans.
“I think it might be time for a glass of wine for sure,” Giovannina Anthony, a Jackson women’s health provider, said after she heard the news.
Anthony has been fighting this battle for the last few years. She was one of several advocates who sued the state after it passed the laws, which never fully went into effect because of the litigation.
Those laws would have banned medical and procedural abortions except in cases of rape, incest or some threat to a woman’s life.
“So I honestly, now, just heard about this, what, five minutes ago? And so I just feel this wave of relief washing over me as I think about the women of this state and other states who are continuing to fight for their rights,” Anthony said.
She’s been waiting 11 months for this decision, but the legal ruling has roots that date back to 13 years ago.
Back in 2011, on the Wyoming state senate floor, the president banged a gavel, convening the day’s session. Lawmakers were gathered to talk about changing the constitution. It was the second reading of the proposed amendment.
“There’s four paragraphs,” said Republican Senator Drew Perkins, who was leading the charge that day. “The first one is, each competent adult shall have the right to make his or her own healthcare decisions.”
The amendment was in response to the passage of the Affordable Care Act, or Obamacare. Republicans were fuming. They were worried people would be forced into the federal health care system.
“That’s what this is about, my fellow senators, I think it’s about choice, about whether you’re free to choose it, about whether you’re free not to choose it,” Perkins said.
The next year, more than 75% of Wyoming voters ultimately approved the amendment, giving them the right to make health care decisions.
The same thing happened in a handful of other conservative states such as Arizona and Oklahoma. That’s according to Mary Ziegler, a historian and law professor at the University of California.
“It was just sort of like … a messaging bill, right, where Republicans were using it to signal disapproval,” Ziegler said, “to message to voters what they thought they were losing with the Affordable Care Act.”
But Ziegler said that the health care access amendment has come back to bite Republicans, who now want to ban abortion.
In the ruling, the district court judge wrote that the abortion bans violate the right to make health care decisions for an entire class of people — pregnant women.
Zeigler said in the flurry of abortion lawsuits since Roe vs. Wade was overturned, this is a new tactic. Other states are using different parts of their constitution.
“Addressing due process or equal protection or the right to life or bodily integrity, like things that are less specifically health-care focused,” Ziegler said.
But with Wyoming’s constitutional amendment in her back pocket, the state judge argued this week that abortion is protected since it counts as health care, according to dictionary definitions and medical associations.
The state of Wyoming and anti-abortion groups strongly disagree.
“Abortion is not health care,” said Marti Halverson, who runs the group Wyoming Right to Life.
Back on that stormy Monday night, Halverson had just been out shoveling snow and was still processing the news.
“It destroys the two-patient paradigm and allows one patient to be killed and somehow benefiting the other patient,” she said. “Wyoming Right to Life doesn't understand that.”
Gov. Mark Gordon has already directed his legal team to appeal the ruling saying he’s committed to defending the “sanctity of life.”
“Wyoming Right to Life is looking forward to the appeal to the Wyoming Supreme Court,” Halverson said.
Even so, Wyoming’s legislative session is coming up in January, and both sides are already planning to introduce laws to further back their beliefs.
Democrats have said they will introduce a bill enshrining the right to abortion, and at least one Republican is saying he wants to place more guardrails on doctors prescribing abortion pills.
Meanwhile, abortion remains legal in Wyoming. Voters also protected access to abortion recently in Montana, Arizona, Nevada and Colorado.
A trial to determine the future of reproduction rights just wrapped up in Idaho, where access to abortion is currently blocked. Litigation is also ongoing in Utah, where some abortions are allowed.
This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Nevada Public Radio, Boise State Public Radio in Idaho, KUNR in Nevada, KUNC in Colorado and KANW in New Mexico, with support from affiliate stations across the region. Funding for the Mountain West News Bureau is provided in part by the Corporation for Public Broadcasting.
