After Roe in Wyoming

Source: Phil Roeder, CC BY 2.0, via Wikimedia Commons

On June 24, 2022, in Dobbs v. Jackson Women’s Health Organization, et al., 597 U.S. ____ (2022), the United States Supreme Court overruled Roe v. Wade and related precedents ending the federal constitutional right to an abortion in the United States. A separate post will be forthcoming about that decision.

RAS, June 24, 2022

Politico has reported that a potential opinion has been approved by five members of the United States Supreme Court to reverse Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

If this opinion is published in effectively the same form and with the same consequences, then part of a Wyoming law, enacted in March 2022, will become effective within thirty-five (35) days and reduce legal abortions to only those “necessary to preserve the woman from a serious risk of death or of substantial and irreversible physical impairment of a major bodily function, not including any psychological or emotional conditions, or the pregnancy is the result of incest as defined by W.S. 6-4-402 or sexual assault as defined by W.S. 6-2-301.” See Wyo. Stat. Ann. § 35-6-102(b). You can read the full statute here:

I am not writing to address the merits, morality, or any other aspects of these developments. I am writing as a lawyer trying to highlight the road ahead.

If the United States Supreme Court reverses Roe and Casey, the Wyoming Attorney General will have thirty (30) days to report the results to the joint judiciary interim committee and the governor. Then, the governor will have five (5) more days to certify to the secretary of state that Roe and Casey are overruled. At which time, abortion in Wyoming will only be legal as described above.

However, this whole statutory scheme stands on, in my opinion, shaky state constitutional grounds.

See, a law may be unconstitutional under the United States Constitution or a state’s own constitution. Right now, certain abortion restrictions are unconstitutional under the United States Constitution per Roe and Casey. However, abortion restrictions have not been tested under Wyoming’s constitution yet.

Wyoming’s state constitution has an interesting and broad recognition of individual rights. In particular, it recognizes an individual’s right “to make his or her own health care decisions.” See Wyo. Const. art. 1, § 38. It provides in full as follows:

(a) 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.

(b) Any person may pay, and a health care provider may accept, direct payment for health care without imposition of penalties or fines for doing so.

(c) The legislature may determine reasonable and necessary restrictions on the rights granted under this section to protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution.

(d) The state of Wyoming shall act to preserve these rights from undue governmental infringement.

Wyo. Const. art. 1, § 38

You can read the full Wyoming state constitution here:

You can also see the relevant section in full below:

As of today, this section of the Wyoming constitution has never been interpreted or cited by the Wyoming Supreme Court. Still, given that Wyoming’s abortion restrictions statute, Wyo. Stat. Ann. § 35-6-102, recognizes that in some cases abortion is healthcare, I believe the remainder of the statute, which is disconnected from protecting the “health” or “general welfare” of the people or accomplishing “the other purposes set forth in the Wyoming Constitution,” could be plainly unconstitutional. If the Wyoming Constitution grants all individuals freedom and control over their healthcare choices and abortion is healthcare in some cases, then the Wyoming legislature cannot place a blanket ban on that procedure without good reason and withstand state constitutional scrutiny.

I think, even post-Roe and post-Casey, Wyoming’s Constitution may yet protect reproductive rights and freedom because, as the Wyoming Legislature recognized even in its “trigger ban” statute, abortion is a medical, healthcare procedure.

Time will tell, of course. However, for now, the ground is shifting.

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