WyoFile by Madelyn Beck

Legislators in Cheyenne have introduced three abortion bills so far this year. Two would further restrict access to abortion services, while a third would return Wyoming’s abortion policy to the status quo before Roe v. Wade was overturned. 

The measures follow a tumultuous year for abortion rights supporters and opponents in the state. 

In March, Wyoming passed a “trigger bill” that was set to ban most abortions if Roe was overturned. In June the U.S. Supreme Court did so with its landmark Dobbs v. Jackson Women’s Health Organization opinion.

Shortly thereafter, a group of women and nonprofits that support abortion access filed a suit claiming the abortion ban violates the state’s constitution. In July, on the day Wyoming’s abortion ban was set to go into effect, a district court judge granted a temporary restraining order that kept the ban from being enforced. In August the same judge issued a preliminary injunction, effectively freezing the abortion ban’s implementation until its constitutionality could be fully determined.

The case was sent to the state Supreme Court in December, but justices refused to hear it at this time and sent it back to the district court in Jackson. 

Most abortions remain legal in Wyoming. 

Roe restored

House Bill 117 – Abortion amendments would make abortion legal until the point of “viability”, or when a fetus could survive outside the womb.

Exemptions include, “when necessary to preserve the woman from an imminent peril that substantially endangers her life or health, according to appropriate medical judgment, or if the pregnancy is the result of incest … or sexual assault.”

It adds that no money from the Legislature could be used for abortions unless there’s a risk to the mother’s life or in cases of incest or sexual assault reported within five days of the victim being able to do so.

This kind of legislation is opposed by those who want to unequivocally ban abortion. Many members of Christian faiths see it as a form of murder. 

“I do worry that it has become more partisan than it should be.”

REP. MIKE YIN (D-JACKSON)

Assault reporting requirements are also critiqued by groups like the United Nations Committee Against Torture, which argue they can present an “insurmountable obstacle” to getting an abortion.

It may not be ideal, but it’s more Constitutional than the law on the books now, according to Rep. Mike Yin (D-Jackson), who sponsored the bill.

There isn’t Republican support for the legislation, though.

“I do worry that it has become more partisan than it should be,” Yin said. “I don’t think all of Wyoming is on that extreme.”

According to a recent University of Wyoming survey, about 36% of Wyomingites who responded felt that abortion should be a personal choice and 36% accept abortion in cases of rape, incest or risk to a mother’s life. Another 19% “favor abortion if other reasons are clearly established,” according to the report, while 7% prefer a total abortion ban. 

Without Republican backing, the bill might not even be read in committee. Many members of Wyoming’s GOP self-identify as “pro-life” and more than 40 of those legislators have signed onto the other bills to further restrict abortion. 

“That hasn’t gone to a committee yet. We don’t know whether it will, but glad to see an attempt to at least put things back where they were, which was certainly better than where they are now,” said Sharon Breitweiser, executive director of Pro-Choice Wyoming.

Abortion pills

Senate File 109 – Prohibiting chemical abortions, sponsored by Sen. Tim Salazar (R-Riverton), would effectively ban most kinds of “chemical abortions,” or the use of certain drugs to cause an abortion.

Suzanne Baudelaire participates in an abortion rights protest in front of the Sheridan County Courthouse on Sunday, July 3, 2022. (Kevin Knapp)

“No person shall manufacture, distribute, prescribe, dispense, sell, transfer or use any chemical abortion drug in the state for the purpose of procuring or performing an abortion,” the bill states. 

Currently, conservative legal group Alliance Defending Freedom is suing the U.S. Food and Drug Administration for its approval of the drug ??mifepristone, which is used in conjunction with other drugs to induce abortions. Many conservative Wyoming lawmakers have ties to that group, including Rep. Rachel Rodriguez-Williams (R-Cody), who sponsored the abortion ban currently on the books. 

A version of SF 109 was introduced in 2021 and another version came up last year. It passed the Senate both times, but was never heard in the House.

“I believe that the bill deserves to be heard,” Rep. John Bear (R-Gillette),  chair of the newly powerful Freedom Caucus, stated in an email.

Bear is one of many legislators co-sponsoring that bill and another House bill that restricts abortions.

Yin, however, believes SF 109 would, if it passed, run into the same hurdles as the law currently tied up in court, saying it seems, “just as unconstitutional if not moreso.”

Senate File 109 does provide exemptions for women who are sexually assaulted and in cases of incest — an addition from Salazar’s bill last year. There are also exemptions in cases of miscarriage and for the life of the mother, but that does not cover suicidality.

“No medical treatment shall form the basis for an exception under this paragraph if it is based on a claim or diagnosis that the pregnant woman will engage in conduct which she intends to result in her death or other self-harm,” it states. 

Restricting access to abortion is linked to higher suicide risks for women of reproductive age, according to recent research published in the journal JAMA Psychiatry. 

The study didn’t find similar correlations for older women. It also does not conclusively find that less abortion access causes suicides, but study author Ran Barzilay said, “This association is robust—and it has nothing to do with politics.”

Wyoming had the highest suicide rate in the nation as of 2020, according to the latest data from the Centers for Disease Control and Prevention. 

“Those children [conceived through rape or incest] are no less valuable to Wyoming than those conceived otherwise.”

MARTI HALVERSON, WYOMING RIGHT TO LIFE

Those who violate the ban in SF 109 would be charged with a misdemeanor and face a sentence of up to six months in prison, a fine of up to $9,000 or both.

Salazar did not respond to requests for comment.

Wyoming Right to Life supports the lawsuit against the FDA and Salazar’s bill, according to former lawmaker Marti Halverson who leads the anti-abortion group. The organization has rallied pro-life advocates around the state to support that legislation next week, she added. The Senate Labor, Health & Social Services Committee is slated to hear testimony on the measure in Room W006 in the Capitol extension Jan. 25 at 8 a.m. 

Halverson, however, doesn’t support exemptions for rape and incest.

“Those children are no less valuable to Wyoming than those conceived otherwise,” she said.

The third abortion bill thus far introduced this session does not include such exemptions.

Defining abortion

House Bill 152 – Life is a Human Right Act is a lengthy bill, which in its first few lines states: “The legislature, as a coequal branch of government, may make declarations interpreting the Wyoming constitution.”

This is an early point of contention. It infringes on the judicial branch’s role as interpreter of the Constitution, according to Yin and Breitweiser. 

The bill goes on to define fetuses and unborn babies in a way that gives them full rights as a Wyoming citizen, and states, “abortion as defined in this act is not health care.”

That phrasing could be a workaround for the questions of constitutionality that has the “trigger ban” hung up in court. Wyoming’s Constitution 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.”

The legislation also outlines potential punishments. Those who provide abortions, according to the draft bill, would face a felony conviction, fines of up to $20,000 and up to five years in prison. There could also be civil penalties levied against those who performed the abortion. 

This bill’s abortion ban also notably does not include exemptions for rape or incest, and would not allow state money to fund any abortions. 

“Rape is a horrible crime. No one should have to endure that kind of trauma,” bill sponsor Rodriguez-Williams said in an email. “And abortion re-traumatizes women, adding violence upon violence. There are many successful healthy people today that were conceived as a result of a violent act such as rape or incest, and their lives are no less valuable.”

Rep. Rachel Rodriguez-Williams (Legislative Service Office)

Others have argued forcing women or children to endure a pregnancy to term is also a form of violence. 

Breitweiser with Pro-Choice Wyoming said banning funds for abortions that result from incest or rape may also put the state at odds with federal rules.  

“That runs afoul of my understanding of federal Medicaid regulations. They can’t do that,” she said. 

The UN International Covenant on Civil and Political Rights also holds that, “States parties must provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, or where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape or incest or where the pregnancy is not viable.”

House Bill 152 also stipulates that the Legislature can appoint the sponsor or co-sponsors of this bill to “intervene as a matter of right in any case in which the constitutionality of this act or any portion thereof is challenged.”

Currently, Rodriguez-Williams, House Majority Floor Leader Rep. Chip Neiman (R-Hulett) and Right to Life Wyoming are fighting to intervene in the lawsuit against the current abortion ban. Their efforts failed at the district court level, and they have appealed the decision to the Wyoming Supreme Court. 

“By inserting that language into a statue, they’re giving themself standing as a matter of right [to intervene]. That’s pretty powerful,” according to Cheyenne attorney Abigail Fournier.

Legislators have given people rights to intervene in other kinds of cases in the past, she said, but adds that it’s unusual for lawmakers to give themselves the ability to intervene.

She said “it’s concerning because it’s self-serving.”